APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Turnbull Lady Clark of Calton	[2010] HCJAC 126 Appeal No: XC276/10 OPINION OF THE COURT delivered by LORD OSBORNE in NOTE OF APPEAL AGAINST CONVICTION by JAMES KERR BLACK Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Ms Mitchell, Advocate; Capital Defence Lawyers, Edinburgh

Respondent: G Mitchell, QC, AD; Crown Agent

10 December 2010

The background circumstances

[1] The appellant stood trial in the High Court in Glasgow in March 2010. After a five day trial, on 24 March 2010, he was found guilty by a unanimous verdict of the jury on two charges. The charges concerned were in the following terms:

"(3) On 15 March 2007 at the Sherbrook Castle Hotel, Sherbrook Avenue, Glasgow, you JAMES KERR BLACK did, while acting with others and with your faces masked, assault Craig McCulloch....push him to the body, threaten him with violence, strike him on the hand with a knife, hold a knife to his throat, force him to open a lock-fast safe, tie him up, place duct tape over his mouth, force him to hand you a set of keys, all to his severe injury, and permanent impairment and rob him of a quantity of monies, a quantity of paperwork, a quantity of knives and a wallet containing a driving licence, bank cards and £500 or thereby of money; and

(4) on 15 March 2007 at the Alexandra Park Golf Club, Glasgow you JAMES KERR BLACK, while acting along with others, having committed the crime libelled in charge (3) hereof and being conscious of your guilt in respect thereof did set fire to the interior of motor vehicle registered number SC54 SYA and this you did with intent to destroy evidence in respect of said crime, to avoid detection, arrest and prosecution in respect of said crime and with intent to defeat the ends of justice and did thus attempt to defeat the ends of justice".

[2] The victim in the first of these charges, Craig McCulloch, was the 20 year old son of the proprietor of the hotel mentioned. He was acting as a sole night porter on the night in question. The hotel building was normally secured and protected by closed circuit television. Unfortunately, due to a malfunction, the closed circuit television cameras had been shut off a night or so before the events concerned. It also appeared that a rear door to the premises might have been left open, affording the appellant and his associates entry to the hotel. At about 2.30am, the complainer was sitting at the reception desk of the hotel when he was confronted by three men in black balaclavas. They were armed with knives which they had taken from a drawer in the kitchen of the hotel itself. The complainer was threatened by one of the men who was wielding a knife and asked to hand over the keys to the safe. The assailant made to put the knife that he was holding to the throat of Mr McCulloch. The latter put up his left hand to protect himself and received a cut to the base of his thumb. The complainer felt that he had no alternative but to accede to the demands of his assailants and opened a safe in the rear of the reception area, from which the robbers took a sum of money, the exact amount of which was never ascertained, but probably amounted to some thousands of pounds. The wallet of Mr McCulloch was also taken. This contained the items mentioned in the charge, £500 of which Mr McCulloch claimed to have taken from the safe to serve as a "float", as required. The complainer was then tied up with a length of telephone extension cord and a piece of duct tape was stuck over his mouth. He was told to wait while the robbers left. A short time later the complainer was able to free himself and telephoned the police. The latter attended at the locus at about 3.00am to find the complainer shaking and bleeding heavily from the wound sustained to his left hand. They arranged for an ambulance to take him to hospital where he was found to have sustained a deep cut which had severed a tendon at the base of his left thumb. It was necessary for the complainer to be transferred to a specialist unit for surgery to repair his injury. Surgery duly took place and the complainer was released a day or two later. Since that time, he has had a degree of scarring to the injury and operation site and claims that he is disabled from the full use of his thumb as a result of the injury.

[3] As narrated in two further charges, dropped by the Crown for lack of evidence, it appeared that the motor vehicle used in the course of the robbery had been stolen from a house in Stirling in the early hours of 13 March 2007, two days before the robbery. This vehicle was found in a partly burned-out condition in the grounds of the Alexandra Park Golf Club at about 8.00am on 15 March, that is to say about five hours after the robbery at the Sherbrook Castle Hotel. It appeared from the damage to the car and the markings on the grass that the vehicle had been driven at high speed into a tree. An attempt had then been made to set fire to the vehicle and its contents. This had been only partially successful, with an area of the rear seat of the vehicle being burned, but with various items still recoverable. Those items included the driving licence and bank cards which had been contained in the wallet of Craig McCulloch. Also found were two balaclavas of the type described by Mr McCulloch. DNA traces on one of the balaclavas was linked to the appellant, while other elements of the evidence pointed to certain of his associates yet to be brought to justice. DNA attributable to the appellant was also found on a cigarette end in the rear of the vehicle. Although there was a dispute about this, the forensic evidence for the Crown was to the effect that the DNA traces on the balaclava could have been left by the appellant if he had worn the item.

[4] The appellant has now appealed against his conviction to this court. In his grounds of appeal he contends that a miscarriage of justice has occurred in respect of misdirection of the jury by the trial judge in relation particularly to the burden of proof. The appellant's grounds of appeal are in the following terms:

"1. It is respectfully submitted that the directions given by the learned judge to the jury in relation to the burden of proof were not clear and consistent (page 1 of the charge, line 17 to page 3, line 3).

(a) In particular, the judge repeatedly indicated that the case had to be proved to the 'satisfaction' of the jury. (page 1, line 19, page 2, line 13-14). It is however of course accepted that he does properly direct the jury elsewhere that the test is 'to your satisfaction beyond a reasonable doubt' (page 2, line 20-21).

(b) The judge directs the jury 'the first and most important rule of all is that it is for the Crown to prove its case. It is never for an accused person like James Black to establish his innocence. The burden of proving the case remains on the Crown throughout. There is no requirement on the accused person to prove anything' (page 2, line 4-8). However, almost immediately after that, the judge directs the jury 'all that the defence has to do in a case like this is to raise a reasonable doubt and if that doubt points to the innocence of the accused then you give him the benefit of that' (page 2, line 17-19). It is submitted that this direction is wrong in two ways. First of all it directs the jury that there is some de facto burden on the defence to raise a reasonable doubt, secondly, it directs the jury that the reasonable doubt should 'point to the innocence of the accused'.

(c) The judge directs the jury (page 3, line 8) 'and if you are left in such a doubt as to the guilt or innocence of the accused here, then the law is, you give them the benefit of that doubt, and if that leads to acquittal, so be it'.

It is respectfully submitted that, looked at cumulatively, the directions given in the present case lacked the clarity required for a jury to properly consider issue (sic), and that being so the misdirection has been material and a miscarriage of justice has occurred".

[5] In view of the contents of the appellant's grounds of appeal, it is appropriate to notice the terms of the trial judge's charge to the jury in that part of it that relates to the directions concerned, that is to say, that part of the charge in which the trial judge gives general directions to the jury relating to the onus of proof and related matters. For that reason, we now set out that part of the charge:

"Well good morning ladies and gentlemen and thank you once again for your prompt attendance. So it now finally falls to me to charge you basically as to the law applicable before you retire to consider what your verdict is going to be in this case. So you'll be asking yourselves what is our function, what is it that we are meant to do? Well basically ladies and gentlemen it's for you to assess and to evaluate the evidence. It's for you to reach a conclusion as to what the evidence amounts to so it's for you to recall the witnesses, what it was they said and for you to conclude whether the witnesses appear credible and reliable or not. Whether you felt able to accept some of what a witness said and not other parts of his or her evidence, the evidence basically and what you make of it is for you. And it would be on the basis of the evidence which you found to be credible and reliable that you had ascertained the facts that you hold to be established by the evidence. And on the basis of those facts you would then proceed to a conclusion as to whether the Crown case has been established to your satisfaction or not. Now this function ladies and gentlemen of evaluating the evidence is clearly of importance in this case where there is a major dispute between the Crown and the defence as to what the DNA evidence you heard about actually amounts to. I'll deal with that in more detail in due course. So, basically the reviewing of the evidence ascertaining the fact established thereby is your responsibility. Now my principal function at this stage in the trial is to give you various directions in law by which you must abide in reaching your verdicts and perhaps you could give your best attention to this. The first and most important rule of all is that it is for the Crown to prove its case. It's never for an accused person like James Black to establish his innocence. The burden of proving the case remains on the Crown throughout. There is no requirement on the accused person to prove anything. In this particular case the accused hasn't given evidence, there's no requirement on him to do so and you must make no adverse inference against him for his not having done so and that is because it is for the Crown to have to prove its case. The way you approach the evidence is to presume that the accused person is innocent until the contrary is proved to your satisfaction, if it ever is. So, it is for the Crown to prove its case. There's a presumption of innocence in favour of an accused person. It's never for an accused person to establish his innocence. All that the defence has to do in a case like this is to raise a reasonable doubt and if that reasonable doubt points to the innocence of the accused then you give him the benefit of that. Now the Crown has to prove its case to a certain standard and that's to your satisfaction beyond a reasonable doubt. So what does that mean? Well what's a reasonable doubt first of all? Well it's a doubt founded on reason rather than a fanciful doubt and if you are led (sic) in such a doubt then the law is that you give the benefit of that doubt to the accused and if that leads to his acquittal in whole or in part then so be it. So what's a reasonable doubt? As I've told you it's a doubt founded on reason. It's the kind of doubt that is often said that would lead you to pause or hesitate in making a decision in your affairs of importance. If you are in doubt for example as to whether or not it would be wise at this time to try and sell your house or change your job or anything of that sort, then that's the kind of doubt we are talking about here and if you are left in such a doubt as to the guilt or innocence of the accused here, then the law is, you give him the benefit of that doubt and if that leads to his acquittal, so be it. So you have to be convinced by the evidence in the case led by the Crown beyond that. So the standard of beyond reasonable doubt is a higher standard than mere probability. If your conclusion in the matter is, probably did, probably was, that won't do, you have to be convinced beyond that higher standard. And you can be so convinced ladies and gentlemen in one way and in one way only and that's on the basis of the evidence that you've found to be credible and reliable. And it's to the evidence and the evidence alone that you look. Don't allow yourselves to be swayed by motivations of sympathy or prejudice and don't allow yourselves to speculate about matters that you've not heard evidence about so it's on the basis of the evidence that you come to your conclusions. And that evidence when it comes to matters essential to the proof of the case must be corroborated and that means that it must come from more than one source. When I talk about the essentials of the case, I'm talking about firstly, whether the crime has been committed and secondly, if so, whether the Crown has proved the responsibility of the accused for the commission of that crime. Those are the essentials. Some of the other matters of detail can be spoken to by one or more credible sources but so far as essential issues of the proof of the case are concerned, there must be corroborated evidence. That doesn't mean to say that you have to have two witnesses speaking to absolutely everything but, so far as essential issues are concerned, then there must be two sources of evidence so you will require one credible or reliable witness supported either by another or by surrounding facts and circumstances. Now let me go over these salient points again. Firstly, it's for the Crown to prove its case, the burden of proving the case remains upon the Crown throughout. There's a presumption of innocence in favour of an accused person which has to be displaced by the Crown and the evidence led by the Crown before you convict. The Crown can only prove its case by reference to the evidence and it's the evidence to which you look not other extra evidential motivations. The Crown has [to] prove its case to your satisfaction to a certain standard and that's beyond reasonable doubt. So far as the essentials in the case are concerned then the evidence has to be corroborated must come from more than one source".

[6] Following that introductory passage, the trial judge went on to give directions to the jury concerning the character of the charges brought against the appellant. He also went on, to some extent, to refer to the evidence which had been led. Thereafter, towards the end of his charge and before dealing with the matter of the verdicts open to the jury he reminded the jury of certain basic features of the law which they had to observe. He did so in the following terms:

"So on the basis of those two sets of contentions, a contention for the Crown and a contention for the defence, it's over to you for your decision in the matter. But let me remind you of one important matter, it is for the Crown to prove its case. It's not for the accused to prove anything. He hasn't given evidence here. As I have already said there is no obligation on him to do so and you must make no adverse inference from his not having done so. All the defence has to do is to raise a reasonable doubt in your mind about the soundness of the Crown case you would be bound to acquit. Otherwise, and if you are convinced of guilt beyond reasonable doubt, you would convict whether in whole or in part as I've explained".

That passage appears at page 14 of the transcript of the charge.

The submissions of the appellant

[7] Counsel for the appellant, having narrated the background to the case and drawn attention to the grounds of appeal submitted that the directions of the trial judge lacked the clarity which was required to enable the jury properly to consider the issues in the case. That amounted to a material misdirection, which, in the circumstances of this case, amounted to a miscarriage of justice. She contended that it was the cumulative effect of the various features referred to in the grounds of appeal that constituted the problem. It had to be borne in mind that the directions which were criticised dealt with matters which were absolutely fundamental to the giving of a proper charge to a jury, that is to say, the matter of the onus of proof and the standard of proof to be achieved by the Crown.

[8] Turning to the subject matter of ground of appeal (a), counsel drew attention to the fact that the trial judge had spoken on several occasions to proof "to your satisfaction". Examples of that could be found at page 1, line 19, page 2, line 14 and line 21 and page 4, line 19 in the transcript of the charge. That was an unusual form of words, although not necessarily wrong. In the first of the examples, the passage contained no mention of the standard of proof. In the second example of the use of this wording, again, there was no reference to the standard of proof, but it had to be accepted that, in the third example, the words used were "to your satisfaction beyond a reasonable doubt". This particular feature of the charge could not itself amount to misdirection, but lacked necessary clarity.

[9] Turning to paragraph (b) of the grounds of appeal, while what the trial judge had said on page 2 of the transcript between lines 4 and 16 was correct, the real problem then followed in the language used at lines 17 to 19. There the trial judge had said:

"It's never for an accused person to establish his innocence. All that the defence has to do in a case like this is to raise a reasonable doubt and if that reasonable doubt points to the innocence of the accused then you give him the benefit of that".

Two criticisms had to be made of that language. First, it directed the jury that there was a de facto burden on the accused to do something. The correct position, however, was otherwise; it had to be recognised that a reasonable doubt could arise and could be founded upon by an accused person if the defence did nothing at all, since there was no onus on the defence. It was submitted that this passage, in that particular respect, was inherently contradictory of what the trial judge had said elsewhere concerning the position regarding onus of proof. Second, the language used by the trial judge suggested that the reasonable doubt could only be of benefit to the accused if it "points to the innocence of the accused". That was incorrect and potentially confusing. There was no burden upon the accused to prove his own innocence and he enjoyed the benefit of the presumption of innocence. Accordingly, for a reasonable doubt to be effective in undermining the Crown case it did not require to point to the innocence of the accused; all that it required to do was that it should exist in relation to the Crown's case and the Crown's proof of that case. It was submitted that this passage in particular amounted to a material misdirection on a matter of the first importance.

[10] Counsel then turned to deal with the subject matter of part (c) of the grounds of appeal. In the passage at page 3 of the transcript between lines 5 and 11, the trial judge had been dealing with the issue of the nature of a reasonable doubt. During the course of that passage he said this:

"If you are left in such a doubt as to the guilt or innocence of the accused here, then the law is, you give him the benefit of that doubt and if that leads to an acquittal, so be it".

It was submitted that the reference to a reasonable "doubt as to the guilt or innocence of the accused" was quite simply incorrect. The reasonable doubt had to be in relation to the proof of the Crown's case. The language used in that passage in the charge was seriously confusing.

[11] Counsel summed up her submission on the charge by saying that the directions as a whole were apt to confuse, particularly that focused in part (b) of the grounds of appeal. Because of their character, this amounted to a material misdirection.

[12] Counsel for the appellant then turned to deal with the question of what test should be applied in judging whether a material misdirection amounted to a miscarriage of justice. The position which she took up on this matter was that if the misdirection evident in a charge had been a material one, then it amounted to a miscarriage of justice. In that connection she drew our attention to WM v Her Majesty's Advocate (16 July 2010) [2010] HCJAC 75, a decision as yet unreported. She relied, in particular, on what was said in paragraph [5] in the Opinion of the Court delivered by the Lord Justice General, although, so far as we can see, that passage is the narrative of a submission rather than part of the decision of the Court. She went on to submit that the test set out in Coughbrough's Exectrix v Her Majesty's Advocate 2010 S.C.C.R.473, at page 489 was unsound. That formulation appeared to be based upon the decision of the Supreme Court in McInnes v Her Majesty's Advocate 2010 S.C.C.R.286, a case which had nothing to do with directions to a jury; rather it dealt with issues of disclosure and the test for circumstances in which a failure to disclose could amount to a miscarriage of justice. A sound view as to the appropriate test could be found in Murray v Her Majesty's Advocate 2001 S.C.C.R.114 at page 119 and Touati v Her Majesty's Advocate 2008 S.C.C.R.211 at page 229. Summing up her position, counsel submitted that in the present case the misdirections identified were material, since they related to the fundamental matters of the onus and standard of proof and, having that character, it followed that a miscarriage of justice had occurred.

Submissions of the Crown

[13] The Advocate depute made clear at the outset that, as regards the test to be applied in considering whether a misdirection amounted to a miscarriage of justice, the formulation adopted in Coughbrough v Her Majesty's Advocate was not supported. The approach there appeared to be founded upon McInnes v Her Majesty's Advocate which was not concerned with that particular issue. What was said in McInnes related to the significance of non-disclosure in any particular case.

[14] Turning to the trial judge's charge itself, the Advocate depute accepted that the passage identified at page 2, lines 17-19 of the transcript of the charge was erroneous. It was indeed correct to say, as had been submitted by counsel for the appellant, that it was misleading to say that the defence to a criminal charge had to "raise a reasonable doubt". As was well recognised there was no onus at all upon the defence in any criminal prosecution. However, having regard to what the trial judge had clearly said in other parts of his charge, any erroneous inference that a jury might have drawn from that passage could not survive in the light of the clear directions that he had given elsewhere concerning the onus of proof and the standard of proof. The jury were clearly told on a number of occasions that the burden of proof remained on the Crown throughout the case. If there was a reasonable doubt concerning the proof of the Crown case, then there had to be an acquittal. The Advocate depute relied on Gemmell v Her Majesty's Advocate 1980 J.C.16, in which it was said at page 21 that:

"A judge's charge should not be scrutinised like a conveyancing document, and what has to be looked at is the effect of a direction given in the circumstances it was given, and what has to be considered is how that direction would be interpreted by a reasonable jury".

In the present case the trial judge had given clear directions regarding the burden of proof and the standard of proof on more than one occasion. The charge had to be read as a whole and the question was what a reasonable jury would take from it, as a whole.

[15] If, contrary to the Crown's submission, the Court could conclude that there had been a material misdirection, the question then would be whether there had been a miscarriage of justice. Applying Murray v Her Majesty's Advocate, the question would be whether the verdict would have been the same, leaving out of account the misdirection. As regards that it was submitted that it would. There had been the clearest forensic evidence linking the appellant with the commission of the offences. A balaclava helmet with the appellant's DNA on the inside of it was found in the damaged car on the rear seat, with the driving licence and bank cards which had been stolen from the complainer. There was also found a cigarette butt in the same location, which bore the DNA of the appellant. A forensic expert had been led on behalf of the appellant as to the significance of the DNA findings, but the evidence of that witness had not been persuasive, given that he could say only that the presence of the DNA was indicative, although not conclusive, of the appellant's involvement. In short, the Crown had set before the jury a powerful case on the facts. It was noteworthy that the verdict of the jury was unanimous on both of the charges concerned. The presence of the DNA of the appellant on the features described cried out for an explanation, which was not forthcoming.

Conclusions

[16] Dealing first with the matters raised in part (a) of the grounds of appeal, we are not persuaded that the criticisms advanced relating to the use of the word "satisfaction" amount, in any way, to a misdirection. It is true that, at a number of points in the course of his charge the trial judge spoke of the Crown case being established "to your satisfaction". In some instances he spoke of the Crown case being established "to your satisfaction beyond a reasonable doubt". In other cases he did not. However, we regard the use of the phrase "to your satisfaction" as meaning no more than the proof of the case to the jury. We are unable to see how this particular choice of language could have misled the jury or confused them in any way. To pose the question of whether the Crown case "has been established to your satisfaction or not" is simply to pose the question of whether the Crown has proved its case. It must also be recognised that on a number of occasions during the course of his charge, the trial judge made it quite clear that the Crown had to prove its case to a particular standard and that that standard was beyond a reasonable doubt.

[17] Turning to the matter raised in part (b) of the grounds of appeal, we accept, as did the Advocate depute on behalf of the Crown, that the phraseology used by the trial judge, particularly at page 2, lines 17-19 of the transcript of the charge, might be thought to be potentially misleading. There he said:

"All that the defence has to do in a case like this is to raise a reasonable doubt and if that reasonable doubt points to the innocence of the accused then you give him the benefit of that".

There are, in our view, two problems relating to that language. In the first place it does seem to suggest that there is some necessity for the defence to a criminal charge and, in particular, these charges to do something, when in fact, as is well known, that is not the case. The whole burden of proof of the case rests on the Crown. Furthermore, it appears to us that to say that "if that reasonable doubt points to the innocence of the accused then you give him the benefit of that", that amounts to a potentially misleading direction. The fact of the matter is that if a reasonable doubt arises, concerning the Crown's case, then that case fails and the presumption of innocence which is enjoyed by the accused throughout the trial remains undisturbed. So it is not wholly clear what the trial judge intended to mean by the language which he used. It may be that all that he intended to do was to reflect that, in this case, as in many others, as a matter of procedure at the trial, the defence would have suggested to the jury that a reasonable doubt existed and thus "to raise a reasonable doubt." In that sense the defence would have raised a reasonable doubt. However, looking at these particular criticisms of the trial judge's charge in the context in which they must be examined, that is to say, as part of the charge as a whole, and avoiding the temptation to scrutinise the language concerned as if it were a conveyancing document, which would plainly be inappropriate, we have come to the conclusion that the parts of the charge founded upon particularly in this part of the grounds of appeal cannot properly be seen as a material misdirection. We say that because at various parts of the charge, the trial judge was at pains to point out that it was for the Crown to prove its case. We refer in particular to what was said at page 2, lines 5-12 of the charge where he said:

"....it's for the Crown to prove its case. It's never for an accused person like James Black to establish his innocence. The burden of proving the case remains on the Crown throughout. There is no requirement on the accused person to prove anything. In this particular case the accused hasn't given evidence, there is no requirement on him to do so and you must make no adverse inference against him for his not having done so and that is because it is for the Crown to have to prove its case".

Those directions could hardly be clearer, in our view, and would dispel any confusion or doubt that the passage criticised might have generated. Directions to a similar effect appear at other parts of the charge, for example, at page 4, lines 12-16 and 18-20 and at page 14, lines 6-8. Following that latter passage there is a further reference to the defence raising a reasonable doubt about the soundness of the Crown case, but, as already indicated, we consider that that may be seen simply as a reference to the procedural way in which that matter would be put before a jury as a submission.

[18] Turning to part (c) of the ground of appeal, the criticism is directed against the passage identified at page 3, line 8 of the transcript. In this part of the charge the trial judge refers to the possibility that the jury are left in a reasonable doubt "as to the guilt or innocence of the accused here, then the law is, you give him the benefit of that doubt and if that leads to his acquittal, so be it". We are unable to conclude that the choice of that particular language can reasonably be seen as misleading. The issue in the case plainly was whether the Crown case was proved to the requisite standard and the appellant was to be convicted, or, on the contrary, whether it was not and the presumption of innocence was to remain undisturbed, which would result in his acquittal. We are not persuaded that that particular phraseology could be seen as a misdirection, particularly in the context of the clear directions relating to the onus of proof and standard of proof given elsewhere. In all these circumstances, we conclude that there was no material misdirection of the jury in this case.

[19] In the light of that conclusion it is unnecessary for us to express any view concerning the controversy which developed in the course of submissions as to the test to be applied in deciding whether a material misdirection amounted to a miscarriage of justice. We did not hear a full argument on that matter and it would therefore be inappropriate to express an opinion, particularly in a context in which a conclusion on the point was not necessary. Suffice it to say that we have some difficulty in seeing what bearing on that matter McInnes v Her Majesty's Advocate has. That case was concerned with the consequences of non-disclosure rather than any question of misdirection. For that reason we have certain doubts about what was said in Coughbrough's Executrix v Her Majesty's Advocate at page 489, where reliance was placed on that decision in the context of consideration of a question of misdirection.

[20] In all these circumstances the appeal is refused.