APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lady Clark of Calton Lord Philip	[2012] HCJAC 12 XC151/11 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in Appeal against Conviction by DAVID HOGAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Scott, Q.C.; Capital Defence, Edinburgh

Alt: Prentice, Q.C., A.D.; Crown Agent

24 January 2012

Introduction

[1] On 26 January 2011 the appellant was convicted on indictment in the Sheriff Court at Alloa of three charges of lewd, indecent and libidinous practices and behaviour, and of three contraventions of section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995. These were charges (1), (2), (3), (4), (6) and (7) on the indictment. In relation to charge (5), the sheriff upheld a submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995.

[2] The surviving charges as amended were in the following terms:

"(1) between 21 January 1991 and 31 August 1992, both dates inclusive at ... you DAVID HOGAN did use lewd, indecent and libidinous practices and behaviour towards KR, born 21 January 1984, c/o Central Scotland Police and did tickle her leg, place your hand inside her pants and fondle her naked private parts and did attempt to insert your finger into her private parts;

(2) between 21 July 1993 and 21 July 1994 both dates inclusive at ... you DAVID HOGAN did use lewd, indecent and libidinous practices and behaviour towards KR, born 21 January 1984, c/o Central Scotland Police and did massage her back, fondle her naked breasts ...;

(3) on various occasions between 2 February 1998 and 7 February 1999, both dates inclusive at ... and at a secluded area ... you DAVID HOGAN did use lewd, indecent and libidinous practices and behaviour towards KR born 21 January 1984, a girl then of or over the age of 12 years and under the age of 16 years, and did repeatedly expose your erect naked private member to her; CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 6;

(4) on 21 February 2002 at ... you DAVID HOGAN did use lewd, indecent and libidinous practices and behaviour towards VW born 15 December 1986, a girl then of or over the age of 12 years and under the age of 16 years, and did fondle her breasts on top of her clothing; CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 6;

(6) on various occasions between 13 June 2001 and 12 June 2002 both dates inclusive at ... you DAVID HOGAN did use lewd, indecent and libidinous practices and behaviour towards LL, born 13 June 1991, c/o Central Scotland Police and did place your hand under the bedcovers and under her clothing, tickle her naked stomach, back and chest, touch her private parts, attempt to insert your fingers into her private parts, expose your naked private member to her and induce her to perform oral sex upon you;

(7) between 13 June 2004 and 12 June 2005, both dates inclusive at ... you DAVID HOGAN did use lewd, indecent and libidinous practices and behaviour towards LL born 13 June 1991, a girl then of or over the age of 12 years and under the age of 16 years, and did fondle her naked breasts; CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 6."

[3] On 22 February 2011, the appellant was sentenced to an extended sentence of six years' imprisonment with a custodial term of three years and an extension period of three years.

[4] The appellant appeals against conviction only. Leave to appeal was granted without restriction. The note of appeal dated 3 May 2011 addressed three main issues, namely the application of the Moorov doctrine, an alleged failure by the sheriff properly to respect the presumption of innocence and alleged lack of balance in the charge to the jury.

[5] Written submissions on behalf of the appellant dated 26 August 2011 were lodged. The written submissions set out in some detail the submissions in support of the grounds of appeal and the case law relied on.

The appeal hearing

[6] There was available an admirably comprehensive report by the sheriff in respect of the note of appeal and a transcript of the charge and verdict.

[7] In oral submissions Mr Scott solicitor advocate for the appellant, restricted the ambit of the appeal. He intimated that he did not intend to insist on the criticism of alleged lack of balance in the charge.

Moorov
[8] Mr Scott accepted that, looking at the charges as comprising a single course of conduct there was a sufficiency of evidence. However, the sheriff's directions based on Moorov in relation to mutual corroboration were inadequate. The sheriff had failed to give full, clear and accurate directions about mutual corroboration in a case where there was some complexity arising from the circumstances and the number of the charges. Some of his directions carried the implication that evidence from a witness on one charge could be corroborated by evidence from the same witness on another charge. The sheriff was also in error in suggesting that evidence on charge (6) might corroborate evidence on charge (1) - the time interval (some 9 or 10 years) was too long.

[9] Mr Scott was also critical of the sheriff's charge in that it envisaged the possible use of charge (4) for corroboration of charges (1) to (3). He pointed out that the evidence as regards charge (4) related to an isolated and relatively minor allegation involving a 15 year old child. The circumstances in charge (4) were markedly different from the circumstances spoken to by the other two complainers in relation to charges (1) to (3) and charges (6) to (7) respectively. He submitted that the sheriff had erred in advising the jury that charge (4) could provide corroboration for charges (1), (2) and (3).

[10] The Advocate depute explained that before the sheriff the Crown case had been presented on the basis that charges (1) to (7) should be regarded as a single ongoing course of conduct - a seamless course of conduct taking place with different complainers over the period in family circumstances. The case for the Crown had not been presented on the basis that, for example, charge (1) might corroborate charge (6) but rather that charges (1) to (3) taken together might corroborate charges (6) to (7) together.

Discussion on Moorov

[11] By the time this case went to the jury six charges were outstanding, involving three complainers who were all related in some way to the appellant: KR was his wife's sister, VW was his niece and LL was his (subsequent) partner's daughter. The alleged conduct as a whole extended over a substantial period and involved, depending on the age of the relative complainer at the time, alleged offences at common law and under statute: charge (1) was of a single incident in 1991 or 1992 when KR was 7 or 8 years old; charge (2) was again of a single incident in 1993 or 1994 when KR was 9 or 10 years old; charge (3) was of repeated behaviour when KR was between the ages of 14 and 15 years (though the evidence, according to the sheriff's report, apparently related to the period from when she was 12); charge (4) was of a single incident when VW was 15 years of age; charge (6) was of repeated behaviour when LL was 10 years of age; and charge (7) was of repeated behaviour when LL was 13 years of age. The conduct variously alleged had many common features. As the sheriff observes in his report these were the relationship of trust within the family between the appellant and the complainer, the [young] female character of the complainers, the location of the alleged acts within the privacy of their home (mainly in the bedroom when the complainers had been dressed for bed) the technique in relation to some of the allegations of introducing a degree of physical intimacy by tickling or rubbing, apparently innocuously, a part of the complainers' bodies and slowly moving the hand towards the private parts with attempts at insertion of a finger into the vagina, and open housecoat/dressing gown exposures. Although charge (4) involved a sole incident involving one complainer, the character of the conduct was not dissimilar to some of the conduct on other charges. We reject the suggestion that it was so different in kind as to be incapable of corroborating other charges or of being corroborated by them.

[12] In describing the rule of Moorov the sheriff gave to the jury the following directions. We set them out in full:

"The rule is this, if you are satisfied that the crimes charged are so closely linked by their character, the circumstances of their commission and the time, character, circumstances and time, as to bind them together as part of a single course of criminal conduct systematically pursued by the accused, then evidence of one witness about the commission of one crime is sufficiently corroborated by the evidence of one other different witness about the commission of each of the other crimes.

For example, suppose someone is charged with corruption in the form of trying to fix four football matches, four goalkeepers give evidence that within a reasonably short period of time the accused approached each of them when alone and said, 'I will give you £14,000 to lose the game.' If their evidence is believed then there's mutual corroboration for each (inaudible).

This same rule could apply in this case. For it to apply you have to believe the witnesses who speak to the individual charges, if you do not there can be no corroboration. So if you believe the complainer in any particular charge then you would have to find corroboration from a credible witness who speaks to any of the other charges. If you do believe that witness then you have to decide if, by reason of the character, circumstances and time of each charge, the crimes are so closely linked that you can infer that the accused was purchasing a single course of crime. It is not enough if all that is shown is that he had a general disposition to commit this kind of offence, you have to apply that rule and to apply it with caution.

So when considering one charge you decide whether you believe the complainer. If you do, you cannot convict on that complainer's evidence alone, there has to be that crosscheck of corroboration. If you believe a complainer who speaks to another separate charge that is still not enough by itself to provide you with that crosscheck of corroboration. For there to be corroboration you need to be satisfied that the two crimes of which you have heard evidence are so closely linked in character, circumstances and time that you can infer that the accused was pursuing a single course of criminal conduct.

It is not really for me to tell you precisely how to go about your task and there is no set way in which you should do so, but one way in which you might approach your consideration of these charges is to consider the evidence in relation to each one and decide whether you believe the evidence or not; whether, in relation to each charge, you found the relevant witness or witnesses credible and reliable; whether you believe part or whole of a witness' evidence. In other words go through the exercises I have described before in assessing the evidence of each witness, and that is because before you can consider returning a verdict of guilty on any of the charges you have to find corroboration from the other charges, or at least one of the other charges.

So in considering Charge (1) you need to know if you can find corroboration in Charges (2) to (7), Charge (5), obviously, is gone, but you need to know if you can find corroboration from Charges (2) to (7). Equally, when you are considering Charge (7) you have to look back to the other charges for corroboration, and so you have to do with each of the charges. So to decide whether you can [find] corroboration from other charges in relation to each charge that you have to consider, it will assist you to know what you make of the evidence in relation to those other charges.

Having (inaudible) the evidence you might then consider each charge in turn to decide what verdict to return, but in relation to each charge, before you can return a verdict of guilty of anything, you have to be satisfied that you find the principal witness credible and reliable. You can then look to the other charges and decide whether or not in all or one of those other charges you can find corroboration of the charge that you are deciding upon, but unless you can say and be satisfied that there is a sufficient link in character, circumstances and time, to enable you to infer that there was a single unified course of criminal conduct you will not have found corroboration. If you fall short of being able to satisfy that test then you must acquit of the charge under consideration, no matter how credible and reliable you find the principal witness to be. If you do decide to acquit on a particular charge then that charge ceases to be available for you to look to for corroboration of any other charge and will, therefore, cause you to take greater care in considering the evidence with which you are left.

The rule has to be applied with caution so, for example, in Charge (1), related to [KR], it is said that the acts there occurred in 1991 or 1992 when she was seven or eight years of age. You will have your own recollection of the evidence. If you believe her evidence you cannot return a verdict of guilty in relation to Charge (1) unless you are satisfied that corroboration can be found and, of course, that the evidence leaves you with no reasonable doubt as to guilt. There is no direct corroboration from an eye witness so you will be looking to see if corroboration can be found by the application of the rule I have just explained.

You may, for example, think that corroboration could be found in Charge (6). You first of all have to decide if you believe the evidence you have heard in relation to Charge (6), if you do not then you cannot find corroboration there. If you do, you still cannot say there is corroboration to Charge (1) unless you are also satisfied that the crimes in Charges (1) and (6) are so closely linked in character, circumstances and time that you can infer that the accused was pursuing a single course of criminal conduct, and you have to be satisfied that it was a single course of criminal conduct otherwise you cannot return a verdict of guilty. It is not enough for you to consider that on the evidence he had a tendency to do this sort of thing as alleged, you must be satisfied that there was a single course of criminal conduct.

Now (inaudible) in Charges (1) and (6) the time period is a long one, you may think it is too long for there to be a connection inferring a single course of criminal conduct, in which case you may decide that the two offences are not sufficiently close and there is no corroboration, or you may think that although the difference in time is considerable there are similarities in character and circumstances which are so strong that they (inaudible) the long term of time.

Whatever view you take of the evidence, if you are in doubt about whether there are sufficient similarities in character, circumstances and time to satisfy you that this was a single course of criminal conduct then you cannot find corroboration in Charge (6). If that happens you have to put Charge (6) to one side and consider whether corroboration can be found in other charges. As I have said before, if that happens you then have to exercise greater caution (inaudible) evidence in respect of different charges.

Now I have explained all this somewhat (inaudible) not to give you any hint or suggestion as to what you should so, but only to illustrate how this rule operates and to highlight for you the sort of decisions you have to make in considering the charges which remain.

I need to say more though. As a further illustration of how the rule works let us suppose that you believe the evidence of [KR] in relation to Charges (1), (2) and (3), but you do not believe the evidence in relation to Charges (4), (6) and (7). In that case, no matter how credible and reliable you find the complainer in Charges (1), (2) and (3), you will not be able to convict as there will be no corroboration from the evidence of the other complainers. A single witness speaking to a number of charges cannot corroborate (inaudible - cough), in those circumstances you would have to acquit the accused of the charges, notwithstanding that you found the witness in relation to Charges (1), (2) and (3) credible and reliable.

There is more. If you believe the evidence of [KR] in relation to Charges (1), (2) and (3) and the evidence of [VW] in relation to Charge (4), but not the evidence in relation to Charges (6) and (7), you may decide that you can find corroboration for Charge (4) from the evidence of [KR] sufficient to return a verdict of guilty, but without the evidence of [LL] you will have to take great care and exercise great caution as to whether, in the evidence of [VW], you can find corroboration for Charges (1), (2) and (3).

You will need to have regard to the singular nature of the allegation in Charge (4) and compare the conduct carefully with what is alleged in the other charges, (inaudible) as against the other two allegations in Charges (1), (2) and (3), that is because, remember, you have to be satisfied that there exists as between the offence in Charge (4) and those in Charges (1), (2) and (3) have sufficient connection in character, circumstances and time to enable you to be satisfied that the conduct in Charges (1), (2), (3) and (4) constitute a unified course of criminal conduct. If you cannot, then you cannot find corroboration for Charges (1), (2) and (3).

If that is where you get to then there is a third [consequence] and listen carefully to this. If, in those circumstances, you find that, after all, you cannot be satisfied that the tests can be met to enable you to find corroboration for Charges (1), (2) and (3) from Charge (4) and apply to acquit of those charges, then you are going to have to acquit on Charge (4) as well, because even though you believe the evidence of Charges (1), (2) and (3), you have no unified course of criminal conduct and the corroboration to Charge (4) is lost, and if you lose corroboration of the charge then you cannot convict on it because there is no corroboration of that charge.

So in this case it can be said that there is enough evidence in law for the crimes alleged are sufficiently close in time, character and circumstances for the rule to apply, but you have to decide in relation to each charge whether that evidence is credible and reliable, if the necessary (inaudible) in time, character and circumstances has been established and if the rule should be applied. If you do apply it then you could convict the accused of these charges. If you are not satisfied that these charges (inaudible), or if you are left with a reasonable doubt about that, then you must return a verdict of not guilty."

[13] These directions are elaborate, perhaps over-elaborate. The sheriff did not adopt the simple approach which, we were told, was adopted by the procurator fiscal depute - viz that charges (1) to (3) together might corroborate charges (6) to (7) together. That was no doubt because on other combinations of circumstances proof by corroborated evidence might be found. In addition to giving his general directions on the Moorov doctrine, the sheriff sought to exemplify or illustrate it by figuring possible combinations of circumstances where corroboration might be found or might not be found. These illustrations were not intended to be exhaustive.

[14] One criticism advanced of his directions was that in a passage at page 21 - "So in considering Charge (1) you need to know if you can find corroboration in Charges (2) to (7), Charge (5), obviously, is gone, but you need to know if you can find corroboration from Charges (2) to (7). Equally, when you are considering Charge (7) you have to look back to the other charges for corroboration, and so you have to do with each of the charges" - he appeared to suggest that corroboration for charge (1) could be found in any of charges (2) to (7), including charges (2) and (3) which were spoken to by the same complainer, and that for charge (7) corroboration could be found in any of the earlier charges, including charge (6) spoken to by the same complainer. Obviously, corroboration could not be so found. However that passage, unfortunately expressed as it was, has to be read in the context of the sheriff's whole charge concerning the requirements for corroboration. In opening his description of the rule he had said "... evidence of one witness about the commission of one crime is sufficiently corroborated by the evidence of one other different witness about the commission of each of the other crimes". The whole of subsequent directions are to be understood as requiring corroboration for any charge to be founded on the evidence of another witness or other witnesses. He had, subsequent to the criticised passage, illustrated the rule by figuring corroboration for charge (1) by charge (6) (charges spoken to by different complainers). He also figured, by way of illustration, the possibility that the jury might believe KR on charges (1), (2) and (3) but not believe the evidence on charges (4), (6) and (7) in which case there would be no corroboration. That was clearly correct; but it also carried the implication that, if the jury did believe the evidence on charges (4), (6) and (7) and the evidence on charges (1), (2) and (3), they could there find mutual corroboration. Listening to these directions as a whole the jury can have had no doubt that it was crucial to the application of mutual corroboration that the corroborating evidence came from a different witness or different witnesses. While the charge might have been framed more simply, we are not persuaded that there was any misdirection in this regard.

[15] On its face the time interval between the conduct on charge (1) and that on charge (6) was long; but the sheriff was careful to impress on the jury in that regard the significance of a close link in character and circumstances. The conduct on these charges was sufficiently close in these respects to allow the jury to conclude that, notwithstanding the interval of time, it represented a single course of conduct.

[16] In any event there was no miscarriage of justice. The jury clearly accepted the evidence of all three complainers to the full extent of the libels then before them. Having done so, there was ample mutual corroboration. This ground of appeal accordingly fails.

The presumption of innocence
[17] The second ground of appeal concerns the directions given by the sheriff in relation to the presumption of innocence. He properly directed the jury that throughout the trial every accused person is presumed to be innocent until proved guilty and that he is not required to prove his innocence; further that it was for the Crown to prove the guilt of the accused of the charges he faced. He reminded them that the appellant had not given evidence personally but that his innocence was presumed for the purposes of the trial. He then continued:

"Do not assume that the Crown case is proved just because you have not heard from the accused. I repeat that in this case the accused has not given evidence, he does not need to prove his innocence, because that is presumed, and he can leave it to the Crown to prove his guilt. You cannot draw any adverse inference from the fact that he did not give evidence, but here there has been evidence of allegations of [indecent] conduct. It is for you to decide if these matters you might think, if you believe the evidence, point to the accused's guilt. Likewise, you might think that these are matters about which he would [have knowledge]. The absence of evidence from him about incriminating matters he must know about may make it easier for you to accept other evidence about these matters, or to draw inferences of guilt from them than might have been the case had the accused given his explanation."

It is the last part of that passage, particularly the last two sentences, of which Mr Scott complains.

[18] This complaint gives rise to a broad question as to when a direction of that kind can appropriately be given to the jury. It is clear that, despite some doubt having been expressed on the matter (Lord Dundas in Brown v Macpherson 1918 JC 3 and Lord Moncrieff in Scott v Brown 1946 JC 90), such judicial comment is competent (Knowles v HM Advocate 1975 JC 6). It should, however,

"be made with restraint and only where there are special circumstances which require it; and, if it is made with reference to particular evidence which the panel might have explained or contradicted, care should be taken that the evidence is not distorted and that its true bearing on the defence is properly represented to the jury"

(Scott v Brown, per Lord Justice General Normand at page 98). In Brown v Macpherson Lord Justice General Strathclyde had said at page 8:

"... the judge may, and in my opinion should, in exceptional cases, comment upon the fact and bring it distinctly under the notice of the jury, who are of course, always entitled to consider the fact that an accused - who, it may be, is the only man in possession of the full knowledge of the facts - refrains from going into the witness box for the purpose of clearing his feet and establishing his own innocence".

Lord Justice Clerk Scott Dickson agreed.

[19] At trial in HM Advocate v Hardy 1938 JC 144 Lord Justice Clerk Aitchison's directions to the jury (at page 147) included:

"Now, there are certain cases in which the proved facts may raise a presumption of guilt, and in which, in the absence of some explanation by the person accused, - where the person accused is the one person who can know the real truth - a jury may be entitled to proceed to draw an inference of guilt; and I direct you in law that this is one of them."

[20] In Stewart v HM Advocate 1980 SLT 245 a court comprising Lord Justice General Emslie, Lord Cameron and Lord Kissen said at page 252:

"There is, of course, no statutory prohibition against such comments by a presiding judge nor are the circumstances in which such comments may be proper and permissible defined or laid down by statute or authority. ... This is a particularly delicate area in which comment has necessarily to be carefully considered lest the jury should receive the erroneous impression that they are entitled to treat the fact that the accused has not entered the witness box as a piece of evidence corroborative of the case for the prosecution, or worse, a piece of evidence which is to be added to a body of evidence which would be insufficient to satisfy them that guilt had been established beyond reasonable doubt."

There is the additional risk that, unless confined to special circumstances, a direction of this kind may diminish or confuse the general direction that no adverse inference can be drawn from the fact that the accused has not given evidence.

[21] In Morrison v HM Advocate 1990 JC 299 it was confirmed (at page 313) that the circumstances in which such comments may be proper and permissible have never been defined. We were not referred to any subsequent authority which attempted any such definition.

[22] We do not attempt an exhaustive definition here but, particularly as a style for judicial comment of this kind is provided in the Jury Manual without any clear guidance as to the circumstances where its use would be appropriate, it is right to consider the propriety of its use in cases of the present kind - cases of alleged sexual abuse.

[23] One case (Paterson v HM Advocate 1999 SCCR 750) is directly in point. We were not referred to this at the hearing - perhaps because, somewhat surprisingly, it is not cited at the relevant footnote (footnote 10) in Renton and Brown - Criminal Procedure, para 18-79.0.4 - though it is mentioned in a later footnote to that paragraph. In Paterson the accused was charged with the rape of two girls on successive nights. Each complainer gave evidence of her experience. The Crown relied on the Moorov doctrine for corroboration. The trial judge directed the jury that the accused did not need to prove anything and continued:

"... I have to direct you that you must not draw any adverse inference from the mere fact that the accused himself didn't give evidence. However, if there is something in the Crown evidence which is crying out for an explanation and there is no explanation for [sic] the accused, then you might find it easier to draw a guilty inference from that piece of evidence because you have had no explanation. It is entirely a matter for you if the situation arises. All I am doing is to emphasise to you, is you must not draw an adverse inference from the mere fact that he has not given evidence."

[24] Of this passage the court (Lord Justice Clerk Cullen, Lord Kirkwood and Lord Cowie) said at page 757:

"In the present case the trial judge, according to his report, regarded his direction as being a standard one, which it plainly was not. We are quite unable to find any circumstances in the present case which could be described as sufficiently special to call for the type of direction which he gave. The Crown case was not based on circumstantial evidence, but on the evidence of the complainers, along with other evidence which the Crown relied on as supporting their credibility. It is not clear what the trial judge had in mind when he referred to the possibility that there might be evidence which, in the absence of an explanation from the appellant, would make it easier for the jury to draw an inference of guilt. We would have expected him to specify any such evidence in order to ensure that his remarks were not used in the wrong context or in the wrong way (cf Mack v HM Advocate
[1999 SCCR 181])".

[25] The court held that there had been a misdirection although, because the direction had been expressed conditionally and there was in fact no evidence which was "crying out for an explanation", that misdirection had not resulted in a miscarriage of justice.

[26] In his report for this appeal the sheriff explains why he considered that this was a case in which such a direction was appropriate. He says:

"The fact of the Appellant's long relationship with and position of trust towards the complainers was not in dispute. While in certain respects which would have been obvious to the Jury witnesses were challenged for lying or fabricating aspects of their evidence there were other respects in which the challenge was more nuanced towards inferences that the witness was mistaken as to what they experienced in the company of the Appellant or misunderstood what was happening. In other respects witnesses were challenged by contrasting their evidence in Court with another less incriminating statement to the police. A suggestion was put to [KR] that she was motivated by jealousy, a matter which it might be inferred was put on the Appellant's instruction and in respect of which he was in a position to enlighten the Jury."

[27] It is clear from Paterson that the circumstance that the complainers gave evidence of alleged personal actings by the accused which he could, by giving evidence, endeavour to rebut does not constitute "special circumstances" within the meaning of the authorities. If that were so, then the direction would be available in virtually every case. It makes no difference that the appellant had a long relationship with and was in a position of trust with respect to the complainers. Nor does it make a difference either that the complainers were challenged as having lied or fabricated aspects of their evidence or that witnesses (including the complainers) were challenged on the basis of inconsistency between their police statements and their testimony in court. It might be that in some circumstances there would be warrant for a direction of this kind if a challenge was made that a complainer had mistaken what she had experienced in the company of the appellant (or misunderstood what was happening). Thus, if there was essentially undisputed evidence that an event had occurred which was open to alternative explanations - criminal or innocent (such as, for example, accidental contact) - a direction might be appropriate; but that would require identification of the event or events in question and the giving of a very specific direction in that regard. A general direction is likely to be confusing and risk the jury applying it in areas where it should not be applied (Mack v HM Advocate, at pages 186-7). No such specific direction was given, nor does the sheriff tell us what particular evidence he had in mind.

[28] As to the suggestion apparently put to KR that she was motivated by jealousy, that could have been dealt with by reminding the jury, if it was the case, that they had heard no evidence in support of that suggestion and that the suggestion was accordingly nothing more than speculation (Mack, at page 185).

[29] In his report the sheriff refers to McIntosh v HM Advocate (No.2) 1997 SLT 1320. That case does suggest that a repeatedly putting "in the most aggressive and hostile manner conceivable" to Crown witnesses in cross-examination of allegations which must have come from the accused may be "special circumstances" which would warrant the judge commenting on the absence of any evidence from the accused (and presumably from any other person) in support of the allegations. But we regard that case as turning very much on its own circumstances. It does not justify a general direction of the kind given here on the ground that an (apparently single) suggestion was made to the witness that she was motivated by jealousy.

[30] In these circumstances we are satisfied that in giving the direction he gave in this case the sheriff misdirected the jury.

[31] It remains for consideration whether this resulted in a miscarriage of justice. The Advocate depute submitted that there had been no such miscarriage. The case against the appellant has been "overwhelming".

[32] It is plain from the sheriff's directions that, if corroboration was to be found for these charges, it was necessary to rely on the Moorov doctrine. It may accordingly be inferred that the Crown case depended essentially upon the testimony of the three complainers. So far as appears, there was no other significant testimony going to the root of the conduct in question. The complainers appear to have been convincing witnesses: verdicts of guilty were returned on all 6 charges without qualification - though it should be noted that the verdicts on charges (6) and (7) were by a majority. It is impossible to be certain as to the effect on the jury of the misdirection; but where they were told that, in the absence of evidence from the appellant, it might be easier for them to accept other evidence (essentially from the complainers) and draw inferences of guilt, there was a real danger that in evaluating the evidence of the complainers they would treat the absence of evidence from the accused as significantly supporting the complainers' testimony. Their verdicts may accordingly have been materially affected.

[33] In these circumstances we are satisfied that, by reason of the misdirection, there was a miscarriage of justice and that the appeal must on this ground be allowed.

[34] We should add that the sheriff at one point in his charge told the jury to put "sympathy aside for the victims of these crimes or for the accused". The use of "victims" was, of course, inappropriate where the issue at the trial was whether or not the complainers were victims of the alleged conduct. But, while this slip was unfortunate, we are not persuaded that it resulted in a miscarriage of justice.

Disposal
[35] Before making a final order we shall hear parties on any aspect of further procedure.