Appellant: Shead; Drummond Miller (for George Mathers & Co, Aberdeen)

Respondent: Fairley AD; Crown Agent

3 July 2012

Introduction

[1] On 11 December 2009 the appellant was convicted after trial on indictment at Aberdeen Sheriff Court of a charge which, with the deletions made by the jury, was in the following terms:

"On 17 March 2009 at, [an address in] Aberdeen you JOSH MICHAEL BIRNIE did assault and abduct ALR, aged 14 years, c/o Grampian Police, Queen Street, Aberdeen, and detain her against her will and did seize her by the body and pin her on a sofa, kiss her on the mouth and neck, place your hand inside her trousers, touch her private parts, and insert your finger into her private parts"

The indictment contained three charges. In the course of the trial the appellant's plea of not guilty to charge 2 had been accepted by the Crown. The appellant had pled guilty to charge 3.

[2] On 21 January 2010 the appellant was sentenced to 18 months detention.

[3 On 1 April 2010 the appellant lodged a Note of Appeal against conviction. This initiated proceedings which, either by themselves or in conjoined appeals sub nom Jude and Ors v HM Advocate have led to four separate published decisions, three by benches of this court and one by the Supreme Court of the United Kingdom. The appellant's other grounds of appeal having been disposed of, this looks to be the last lap of the circuit.

Grounds of Appeal

[4] The remaining grounds of appeal are in the following terms:

"The above named convicted person appeals against conviction and sentence on the following grounds:-

1. That in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, the verdict returned by the jury was a verdict which no reasonable jury, properly directed, could have returned. There is no criticism made of the charge to the jury by the learned trial judge. Rather, that the quality, character and strength of the evidence led in support of this charge were such that the jury should have entertained a reasonable doubt as to the guilt of the appellant and accordingly, there has been a miscarriage of justice.

2. That the Crown case relied on the complainer, ALR being both credible and reliable, and also on her distress being attributable to the alleged abduction and assault.

3. The jury should not have accepted her account beyond reasonable doubt for the following reasons.

(a) The defence position was that if any sexual activity took place, it did so with the consent of the complainer, and that she was not detained against her will, she being at the time, involved in an illicit and consensual relationship with the appellant.

(b) That the relationship was concealed as she was at the time, the girlfriend of the appellant's older brother. This fact was spoken to by all of the Crown witnesses.

One of the Crown witnesses KAH, spoke to witnessing sexual activity on a previous occasion between the appellant and complainer.

(c) That the complainer gave an account of how she came to be in the appellant's home which was completely divergent to the account given by her friend, a Crown witness who corroborated that part of her testimony.

(d) That she alleged that her mobile telephone had been taken from her during this incident, yet volunteered that she had received calls and sent text messages from this telephone.

(e) That she was given the opportunity to leave when the appellant's mother arrived home, and chose not to do so, nor to accompany the appellant's mother to a local shop, but elected instead, to remain, chatting happily with the appellant, displaying no signs of distress.

(f) That the complainer only showed signs of distress, some time later when she was challenged by her boyfriend and his friends who were all Crown witnesses on the Indictment. Evidence from all of the Crown witnesses in respect of this part of the evidence was to the effect that she only became upset when Dean Birnie, her boyfriend argued with her and ended the relationship, following the discovery of the complainer and the appellant being alone together and her exhibiting 'love bites'.

(g) That the allegation of being forced into the sexual activity was then made by her.

(h) That she denied in evidence having stolen a silver necklace from the appellant, and denied that she had refused to return it and instead kept it in a box as a keepsake. That this was directly contradicted by the Crown witnesses Dean Birnie and KAH who spoke to this.

(i) That in all the circumstances, the complainer could not reasonably [have] been considered to be a credible or reliable witness."

Complainer's Evidence

[5] In a Supplementary Report the Sheriff summarised the evidence given by the complainer at trial as follows:

"On 17^th March 2009, the complainer had attended school in the morning. In the afternoon she and four friends played truant and went to McDonald's in Union Street, Aberdeen. When they left the premises she saw the appellant whom she identified. She had known him since the previous Christmas. The appellant asked the group of girls to come with him to his mother's flat as he wanted to pick up a jumper there. Two of the girls left for school and the complainer and KM agreed to go to the appellant's mother's flat. When inside the flat the appellant told the complainer and KM to go into the livingroom. He turned on the television set and all three sat watching the television. KM received a telephone call on her mobile from her mother and decided to leave. The appellant told the complainer that she was not to go. When asked why she did not leave with KM, the complainer replied that it was because the appellant had told her that she wasn't getting to go. After KM left, the appellant and the complainer sat for fifteen minutes in silence watching the television. Again, the appellant indicated that she wished to leave and again the accused told her she was not being allowed to. All of a sudden things changed. He swung the complainer's legs round on the sofa and he climbed on top of her. Again, the complainer asked if she could leave. The appellant said nothing. He then put one hand down her trousers and pants and touched her on the "fanny". His hand was there for quite a while "digging around". Then he put his hands on her chest. His hands had previously been down her underwear. The complainer said she started to cry. She tried to get up from the sofa and he put his hand on her neck. He was lying on top of her and she was not able to get up. She was constantly telling him that she wanted to leave and he kept replying that she wasn't allowed to leave. She felt scared. This lasted about fifteen minutes. The buzzer rang. The appellant sat up and re-arranged the cushions and told the complainer to sit straight. She did so. The witness then heard the front door opening and the appellant's mother came in. The complainer stated she had tears running down her face. The appellant's mother asked her if she wanted to go with her to the shops. She did not appear to notice anything wrong. The complainer refused. When the appellant's mother left, the complainer sent a text to KM asking her to come back and get her. KM telephoned and stated that she could not return to the flat but would try and arrange for someone to come and get her. The complainer did not tell KM what had happened. The complainer then received a telephone call from a SM who said that he and a number of others were on their way to the flat. The appellant removed the complainer's mobile phone from her and told her that his mother would be back soon but they could "do it before she gets back". The complainer asked again if she could leave. Each time she tried to get up from the sofa the appellant stood in front of her preventing her from leaving.

The appellant's mother returned shortly afterwards. The complainer went out onto the balcony with the appellant's mother. A crowd had gathered outside including Dean Birnie, RP and SA. The complainer went downstairs but did not tell anyone in the crowd what had happened although some of them seemed to notice that she had been crying. Dean Birnie (brother of the appellant) said "he's probably done something to her". The complainer said she did not say anything to the people who were outside the flat and it was two months later she told her friend KH what had happened. When asked what she thought the appellant's intentions were, she replied "I thought he wanted to go on to sex."

[6] In cross-examination the complainer:

"denied that at the relevant time she was the girlfriend of Dean Birnie, the older brother of the accused. She denied the suggestion that she had received a text from the accused on the morning of 17^th March 2009 telling her that his mother was going out and that she could come to the flat. She denied that she ever had the option to leave. She denied a suggestion that when KM left that she said to her that she wanted to stay with the appellant. She insisted that she did wish to leave at the same time as KM but was too scared of the appellant. It was put to her she had initially not made any attempts to use her mobile phone. She agreed and stated that she did not know why that was. She denied that there was any kissing and cuddling between her and the appellant. She denied that she was given a love bite by the appellant. She was unable to explain why she had not said anything to the appellant's mother when she first came to the flat. She was unable to explain why she did not take up the mother's suggestion to come with her to the shops. She said that she did not really know the appellant's mother. When the appellant's mother returned to the house, that was the first opportunity the complainer felt that she had to leave. She denied after the incident that she sent a text to the appellant to say that she wished matters had gone further. Her evidence was that it was he who had sent her a text of that nature. She said that she was not aware whether the front door was locked or not. She was asked whether or not she was in possession of a silver necklace that the appellant used to own. She claimed to have knowledge of it but stated that it was in the possession of her friend KH who was the current girlfriend of Dean Birnie."

Submissions

[7] Mr Shead, on behalf of the appellant, confirmed that notwithstanding its articulation in three paragraphs, what was before the court was one ground of appeal to the effect that the verdict returned by the jury was a verdict which no reasonable jury, properly directed, could have returned. The evidence of the complainer, speaking to her alleged abduction and assault, had been critical. The contention on behalf of the appellant was that the complainer simply could not be regarded as a credible witness given the other evidence which had been led for the Crown. Mr Shead relied on five aspects of that evidence as fatally undermining the complainer's credibility: (1) the complainer's friend, KM, gave a different account than that of the complainer as to how they came to be in the appellant's mother's flat; (2) the complainer had accepted that the appellant's mother had come to the flat and asked whether the complainer wished to accompany her to the shops, but the complainer neither drew to the appellant's mother's attention that she was being detained in the flat against her will or left the flat with her on being invited to do so; (3) the complainer's distress after the event could be attributed to her boyfriend ending their relationship; (4) the evidence of KH and Dean Birnie that the complainer retained the appellant's silver necklace and the complainer's denial that she had in fact been in a relationship at the relevant time with the appellant's brother, Dean Birnie, whereas Dean Birnie spoke to her being his girlfriend; and (5) the discrepancy between the complainer's evidence and that of SM as to when she had begun crying after leaving the flat.

[8] The Advocate depute reminded the court that the no reasonable jury test was a very high one: Jenkins v HM Advocate 2011 SCCR 575 at para 44, Mitchell v HM Advocate 2008 SCCR 469 at para 111 and E v HM Advocate 2002 SCCR 341 at para 30. The criticisms advanced by Mr Shead had been on matters which were peripheral to the core issues which were whether the appellant had indeed abducted and assaulted the complainer. The ground of appeal described the defence position as being that if any sexual activity took place it did so with the consent of the complainer but, the appellant had in fact admitted that he had digitally penetrated the complainer. The question for the jury therefore came to be whether that constituted an assault or whether it was consensual activity. KM had spoken to the complainer being upset. The witnesses SA and SM also spoke to her de recenti distress. There was ample evidence on the basis of which the jury was entitled to conclude that the Crown had established the central elements of its case. The Advocate depute accepted that there were discrepancies as between the complainer's account and other evidence in relation to matters outwith that core but it could not be said here that the reasonable jury could have convicted on the evidence led.

Discussion

[9] Where an appellant's ground of appeal is that set out in section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, he accepts that he was convicted by a jury, properly instructed in the law, which had heard sufficient evidence and which must be taken to have found that evidence to have both been credible and reliable. It is unsurprising therefore that the test which an appellant must meet in these circumstances is a very high one: Jenkins v HM Advocate supra at para 44. There being no question of error in law, the appellant seeks to enter into what is generally considered to be the exclusive province of the jury with a view to persuading the court that the jury which convicted him returned a verdict which no reasonable jury, properly directed, could have returned. There will be the rare case where an appellant will succeed on this ground; where the court, applying its collective knowledge and experience, is able to say that the verdict under appeal was indeed one which no jury could reasonably have returned: E v HM Advocate supra at para 30 and see also Jenkins v HM Advocate supra. However this is not such a case. Mr Shead accepted that what was in issue here was a straight question of credibility, the resolution of which depended on testing the evidence of the complainer as against other pieces of evidence which contradicted her or which, on one view, might suggest that her account was unlikely to be correct. The discrepancies pointed to by Mr Shead were, as the Advocate depute submitted, in relation to peripheral matters. These discrepancies might have persuaded the jury to doubt the complainer's truthfulness on the central elements of her account but they did not in fact do so. It is entirely within the province of a jury to decide which evidence to accept and which to reject, including picking and choosing its way through the evidence of individual witnesses: Harris v HM Advocate 2012 SCCR 234 at para 67. In the present case it simply cannot be said that the jury was not entitled to decide as it did.

Decision

[10] The only remaining ground of appeal against conviction is therefore refused. Mr Shead confirmed that there was no intention to pursue an appeal against sentence.