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Cite as: 2009 SCL 376, [2009] HCJAC 01, [2009] HCJAC 1, 2009 SLT 300, 2009 SCCR 415, [2009] ScotHC HCJAC_01, [2009] ScotHC HCJAC_1, 2009 GWD 2-34

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Clarke

Lord Philip

[2009] HCJAC 1

Appeal No: XC880/06

OPINION OF THE COURT

delivered by LORD CLARKE

APPEAL AGAINST CONVICTION

JAMES THOMSON

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Shead; Capital Defence Lawyers

Alt: Mitchell, A.D.; Crown Agent

9 January 2009

[1] On 1 November 2006, at the Sheriff Court, Edinburgh, the appellant was found guilty, by jury of the following charges:

"(1) on 1 June 2006 at Orchard Park, Kelso you ... did conduct yourself in a disorderly manner, follow C, then aged 10 years, ... in your motor car and commit a breach of the peace;

(2) on 1 June 2006 at Eschiehaugh, Kelso you ... did conduct yourself in a disorderly manner, follow C, then aged 11 years ... and L, then aged 11 years ... in your motor car, speak to said C and commit a breach of the peace;

(3) on 1 June 2006 at Eschiehaugh, Kelso you did attempt to abduct said C ... and seize her by the hand in an attempt to cause her to enter your car;

(4) on 1 June 2006 at Sydenham Court and Oakfield Court, Kelso you did attempt to abduct A, then aged 7 years ... J, then aged 7 years ... and C, then aged 9 years ... and did ask them to get into your car;

(5) on 1 June 2006 at Broomlands Gardens, Kelso you ... did assault L, then aged 7 years ... and did take hold of her, place your hand inside her trousers and underwear and touch her naked private parts;

(6) between 5 June 2006 and 8 June 2006, both dates inclusive, at the house then occupied by you at 12 Springwood Bank, Kelso, St. Leonard's Police Station, Edinburgh or elsewhere you ... did, in the knowledge that you expected to attend at an identification parade, shave off your beard and other facial hair and present yourself at an identification parade having changed your appearance in an attempt to prevent witnesses viewing said identification parade from identifying you and this you did with intent to pervert the course of justice and did attempt to pervert the course of justice;

you ... did commit this offence while on bail, having been granted bail on 5 June 2006 at Jedburgh Sheriff Court."

In respect of charges (2), (5) and (6) the jury's verdict was unanimous. In respect of charges (1), (3) and (4) their verdict was by a majority. On 14 December 2006 the sheriff sentenced the appellant to 4 years imprisonment in cumulo on charges (1) to (5) and 12 months imprisonment consecutively on charge (6). The appellant was also made subject to the notification requirements of the Sexual Offences Act 2003.

[2] The appellant has appealed against both conviction and sentence. In support of his appeal against conviction six grounds of appeal were lodged, all of which passed the sift. Grounds 1, 2, 3 and 5 are concerned particularly with a statement given by the appellant during one of five interviews he had with the police. The appellant raised a preliminary issue as to the admissibility of that statement at a hearing before the sheriff on 23 and 24 October 2006. The sheriff, after having heard evidence and submissions on the matter, ruled that the statement was admissible and refused leave to appeal against that decision.

[3] The appellant had been interviewed twice on 2 June 2006 regarding allegations of conduct by him towards young girls in Kelso on 1 June 2006. In the second interview he admitted to having been in the Broomlands area of Kelso, on 1 June 2006, but denied speaking to, or seeing anybody, then. In the third interview, which took place on 2 June 2006, the appellant was charged with an indecent assault at Broomlands Gardens, Kelso, which subsequently became charge (5) on the indictment. On 3 June 2006 the appellant was interviewed for a fourth time. This interview was in relation to allegations about alleged conduct on the part of the appellant towards three young girls at Sydenham Court and Oakfield Court, Kelso. The appellant was subsequently charged with attempted abduction in relation to these allegations and that charge became charge (4) on the indictment. During the fourth interview the appellant was asked generally what he had been doing on 1 June 2006. Towards the beginning of that interview, the interviewing police officer said

"Okay, and we're no gonnae go with you into why you were arrested and why you were here".

The officer continued "We're discussing a separate matter". Arising from the request to the appellant as to what he had been doing on 1 June 2006 the following exchange, as recorded in the transcript, took place:

"SUSPECT: Took some photographs and I came back, parked my car and I went back to take, to take a photograph wi the, the original Broomlands House when the wee lassie fell off her bike.

DCI: Ah ha.

SUSPECT: And that's when I gave her hand, and got her onto her feet and rubbed eh, the wiped the gravel and what not and gave her a brush off, and, eh, and I said 'are you okay?' and that, and I said, and I, eh, I said 'what age are you your little to be out here on the main road', this is right on the main road into Broomlands and gave her a bit pat on the bum in hindsight.

DCI: Are you saying on the road into Broom, Broomland?

SUSPECT: Aye, there's a road goes past Broomlands Primary School and it goes right into the, the big estate that ... built.

DCI: Right.

SUSPECT: And I was parked on that ... ".

The interviewing officer, at that point, intervened in the following terms:

"DCI: Obviously, eh, obviously, em, you know that, that you discussing something here that you have already been interviewed about."

The following exchange then took place:

"SUSPECT: Uh hmm, I know.

DCI: That you've already been charged with.

SUSPECT: Aye, I know.

DCI: Yes, em, so I must reiterate again that you're under caution, you know.

SUSPECT: Sure.

DCI: Again you don't have to say anything in relation to that incident.

SUSPECT: No, I understand.

DCI: Okay?

SUSPECT: I understand."

It was common ground, at the appeal hearing, that the statement quoted was a reference by the appellant to an encounter by him with the complainer named in the fifth charge. As recorded in the sheriff's report this complainer gave evidence, at the trial, that she fell off her bike and after that the appellant had come towards her, held on to her, putting his hands down her pants and touched her. The appellant, himself, gave evidence and, in doing so, in essence, repeated what he had said in the statement given during the police interview which we have quoted above. It should be noted, at this stage, that the Crown did not rely on Moorov to provide corroboration of the various charges on the indictment.

[4] In charging the jury, in relation to charge (5), the sheriff, inter alia, said this at pages 22-23 of his charge:

"Now you heard the evidence of L and what she said that the accused did. You will remember that you heard evidence of what B, L's father, said that she had said to him. Now I want to make it clear to you that what he said she said is not evidence or proof that it happened.

Now the accused, when he gave evidence, said that he'd seen her fall off the bike and he picked her up and he brushed her hands, he gave her back a brush, he adjusted her top and he said that he gave her pat on her bottom. So he admits touching her on her bottom on top of her clothing, that could be an assault but he said of course he didn't do what she said he did by putting his hand inside her pants.

Now in order to convict the accused of doing what she said he did, you would have to believe L in her evidence of what she said. There was some evidence of her being distressed, you remember what her father said that she came home and that she was bawling, certainly crying. Now that shows that something happened that upset L and that she didn't agree with it being done but it doesn't corroborate what she said happened.

So you will have to consider very carefully what the accused said he did and what L said that the accused did and whether you believe her. If you're not satisfied that he did what she said he did and you consider that what he said he did, which was touching her on the bottom, you consider that was an assault, you could delete words if you wish to indicate that there was an assault simply by touching her. If you do not consider there was an assault, of course, you would acquit, or you were not satisfied beyond reasonable doubt."

Ground of appeal 2 is in the following terms:

"Esto the sheriff was entitled to repel the objection it is nevertheless submitted that there was insufficient evidence to allow the charge to be considered by the jury. What was said by the appellant could not reasonably be regarded as providing corroboration for the complainer's account. It failed to provide support either for the actus reus or the mens rea of the offence".

In addressing the court in relation to that ground of appeal, counsel for the appellant submitted that it was important to have in mind what the terms of the charges libelled against the accused were, and of what he was convicted. There was no charge of assault on the complainer, indecently or otherwise, by patting or touching the complainer's bottom. The only source of evidence as to the particular assault libelled was from the complainer herself. The learned sheriff appeared to proceed on the basis that what the appellant had said in his statement, taken with what he himself said in evidence, which was largely to the same effect, could provide corroboration of the commission of the offence libelled, but the conduct towards the complainer, which the appellant had admitted to, should have been treated not, it was submitted, as the sheriff appeared to treat it in the passage from his charge quoted as "evidence of a criminal assault", but as being exculpatory of the conduct of which the appellant was charged. The mens rea required for the indecent assault charged could not be inferred from the admission of the appellant of his having patted the complainer's bottom.

[5] Ground 4 of the Note of Appeal focused on the sheriff's remarks at pages 22-23 of his charge to the effect that:

"There was some evidence of her being distressed, you remember what her father said that she came home and that she was bawling, certainly crying. Now that shows that something happened that upset L and that she did not agree with it being done but it does not corroborate what she said happened."

Those remarks, it was submitted, involved a misdirection. What was to be made of the evidence of the complainer being distressed, and any inference to be drawn from it, was for the jury to determine and not the sheriff. The sheriff had, in saying what he did, usurped the function of the jury. The sheriff was, in effect, by those remarks, endorsing the complainer's credibility, which was not a matter for him.

[6] In response to these criticisms of the sheriff's charge in this case, the Advocate depute's position was that the complainer's evidence was sufficiently supported by what the appellant had said in the statement when interviewed, and in his own evidence, taken together with certain other adminicles. The admitted patting of the complainer's bottom could, it was submitted, be regarded as an indecent assault, having regard to the fact that the complainer and the appellant were complete strangers to each other and the fact that he was a 69 year old man and she was a 7 year old girl. The jury, it was said, would have been entitled to infer from that that the indecent assault libelled was committed. Reference was also made by the Advocate depute to some evidence given by a neighbour of the complainer that he had seen the complainer and the appellant together and that he had had a gut feeling that "something was wrong". While the Crown were not relying upon Moorov in this case nevertheless, it was said, the earlier behaviour of the appellant towards other young girls was consistent with a course of conduct culminating in an indecent assault. Reference was made to Chakal v Brown 2004 SCCR 541 and Stirling v McFadyen 2000 SCCR 239.

[7] As regards the sheriff's remarks about the inference that could be drawn from the evidence of the complainer's distress, there was no suggestion, it was submitted, that this distress was attributable to anything other than her encounter with the appellant. In the context of the case as a whole, the sheriff's remarks did not amount to any miscarriage of justice, though it was accepted that in another case the approach taken by the sheriff in directing the jury, as he did, as to the inference that should be drawn from the evidence might have proved fatal.

[8] Having considered the submissions made to us, we have reached the conclusion that the conviction in relation to charge (5) cannot stand. It is of significance, in our judgment, that the Crown, in charge (5), did not libel any assault by the appellant indecent, or otherwise, arising from the accused touching or patting the complainer's bottom. They knew in advance of the trial that the appellant had admitted to doing that. The appellant went to trial knowing that he had admitted such conduct but did so, no doubt, in the reasonable belief that that conduct was not to be regarded as criminal conduct in the context of this case. The sheriff, however, in the passages cited from his charge directed the jury that that conduct could amount to a criminal assault. He did not suggest in his charge that the corroboration of the complainer's evidence as regards the indecent assault charged, could be obtained from anything other than the appellant's admission about what he did do. We are satisfied that the appellant's admission as to what he did do could not afford corroboration of what the complainer said, and of what he was in fact charged, and convicted of. The Advocate depute freely conceded that the Crown had to rely on the appellant's admission as to what he had done to provide the necessary corroboration in relation to charge (5). While the Advocate depute had referred to certain other adminicles of evidence pointing towards the commission of the offence he did not suggest that, without the appellant's admission, these, taken together, would have provided corroboration of guilt.

[9] The cases of Chakal and Stirling are distinguishable from the present case. In Chakal, the issue was whether the evidence of distress of a young female complainer, when there was evidence, from persons other than the complainer, of the accused having previously made sexual advances towards her, could corroborate her evidence of actual physical sexual activity when only she and the accused were present. It was held that it could provide such corroboration.

[10] In Stirling detailed allegations of lewd practices had been put to the accused to which he responded "Oh dear. I suppose I am a bit of a fool". It was held that the sheriff was entitled to treat that response as an admission.

[11] It should be immediately apparent that the questions addressed and decided in those cases were somewhat different from those raised in the present appeal.

[12] We, furthermore, agree with counsel for the appellant's submission regarding what the sheriff said with regard to how the evidence of the complainer's distress should be treated. We agree that his remarks did amount to a misdirection in that what was to be made of that evidence, and any inference to be drawn from it, was a matter not for him to direct the jury on, but was something to be left entirely to them. In the circumstances of this case, moreover, we consider that the misdirection was material and resulted in a miscarriage of justice.

[13] It should be noted that counsel for the appellant, in his submissions, sought to attack the sheriff's decision in relation to the admissibility of the appellant's statement, which has already been the subject of consideration in this Opinion. It was argued that the circumstances in which that admission occurred, particularly after the accused had been charged with the offence which became the substance of charge (5), was eloquent of unfairness to the appellant. As we have already held that charge (5) has to be quashed for other reasons, it is not necessary for us to say a great deal about this submission. Suffice it to say that we saw no merit in this ground of appeal. The statement in question was not, in our judgment, obtained by anything said or done on the part of the police which could be regarded as unfair. There was no invitation, or inducement, by the police officer, in question, which was the cause of the statement in question being made. In our view the statement fell to be regarded as wholly voluntary. The appellant had been told by the police officer that he was not being asked about the matter in respect of which he had already been charged. The police officer, in our view, said nothing that detracted from that position and, as can be seen from the extract of the interview, set out above, the officer, as soon as he realised what the appellant was alluding to, reminded him that he need not say anything about that matter.

[14] Counsel for the appellant sought to persuade the court that the sheriff's misdirection in relation to charge (5), in particular his remark about the appellant's admitted patting or touching of the complainer's bottom, may have placed in the minds of the jury, an attitude towards the appellant, which meant that their verdicts in relation not only to charge (5) but the other charges, which would have involved such prejudice against him that the convictions, in relation to them, required to be quashed. We are unable to agree with that submission. The sheriff gave, in his charge, clear and adequate directions in relation to the other charges and directed the jury that they had to consider each charge separately and had to consider the evidence applicable to each charge and to reach a verdict on it. We are satisfied that the jury would have understood that in making the remarks he did, the sheriff was addressing only the evidence in relation to charge (5) and that he was not suggesting that the evidence in question, and his gloss on it, was relevant to the jury's consideration of the other separate charges.

[15] Lastly, the appellant sought to have his convictions as a whole quashed because of alleged inadequate directions given by the sheriff in his charge as regards "mixed statements" given by the appellant during the various interviews with the police. The complaint here was that (a) in the first place, the sheriff should have directed the jury that if the content of the statements, or any of them, raised a reasonable doubt about the appellant's guilt they were bound to acquit him and (b) in any event, the sheriff omitted to instruct the jury that they were entitled to take account of the statements as a guide to assessing the credibility and reliability of the appellant's evidence. It is true that in his charge, in those passages where the sheriff refers to the interviews, he does not give a direction to the jury that if any of the statements contained exculpatory material which raised a doubt in their minds the appellant should be acquitted. The sheriff did, however, say at page 27 of the charge

"Now you can consider the whole of those statements, the parts which point to his involvement and guilt and those which do not and determine whether the whole or any part of what he said is accepted by you as the truth. The interpretation you put on it is a matter for you to decide."

Again, at page 33 of his charge the sheriff directed the jury as follows:

"If you believe the accused or any evidence which clears him from blame then you should acquit."

Moreover, at page 9 of his charge, in his general introductory directions, the sheriff directed the jury in the following terms:

"If there is any evidence that clears the accused from blame and you believe it you must acquit him, even if that evidence stands alone, even if you do not completely believe it but are left with a reasonable doubt about guilt, again you must acquit."

While it may be argued that it would be preferable if the sheriff had given a specific direction in relation to exculpatory parts of the appellant's statements, in our judgment, having regard to what he said in other places in his charge, just referred to, there was no miscarriage of justice arising from any failure to do so and this ground of appeal is without merit. In addition the sheriff in his report gives an acceptable explanation as to why he considered that it was not appropriate to say specifically, that the statements could be looked at by the jury in assessing the credibility and reliability of the appellant. That explanation was how the appellant's changing accounts of matters in all the interviews, meant that highlighting them, for the purpose desiderated, would have, in the circumstances of the case, been possibly to the prejudice of the appellant.

[16] Having quashed the conviction in relation to charge (5) the case shall be continued for the hearing of the Note of Appeal against sentence.