APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Paton Lord Emslie Lord Osborne	[2012] HCJAC 52 Appeal No: XC301/11 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST CONVICTION by JM Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: I Paterson, Solicitor advocate; Paterson Bell, Edinburgh (for Messrs Dalling, Solicitors, Stirling)

Respondent: Wade, Advocate depute; Crown Agent

27 April 2012

Introduction

[1] On 3 February 2011, at Stirling Sheriff Court, the appellant was convicted by majority verdict of the following offence:

"On 5 April 2010 ... you ... did use lewd, indecent and libidinous practices and behaviour towards AB, your niece ... then aged 3 ... and did expose your private member and masturbate in her presence and ejaculate over her buttocks and private parts."

At the time of the offence, the appellant was aged just under 15. He was aged 16 at the time of the trial.

[2] The appellant appealed against conviction, contending that the sheriff had erred in refusing a submission of no case to answer in terms of section 97 of the Criminal Procedure (Scotland) Act 1995, and had also misdirected the jury in relation to the evidence of a forensic expert witness Miss Pheasy. At the appeal hearing, transcripts of the evidence of the expert and the complainer's parents were available.

The trial sheriff's report

[3] The sheriff gave the following details in his report:

"...[6] On 5 April 2010 the accused and his family and the complainer and her family had been out for a bar lunch. Afterwards, five persons returned to the complainer's house at [a given address]. These were:

·       The complainer, AB, aged 3

·       Her mother;

·       Her father;

·       Her brother, CD, then aged 6; and

·       Her uncle, the appellant.

[7] At one point later, about seven o'clock in the evening or so, CD had come downstairs. He had previously been playing with AB and the appellant upstairs. CD went out to play outside. The only two adults in the house, AB's mother and father, were downstairs.

[8] After about 20 or 30 minutes, during which the accused and AB were upstairs, AB came downstairs wearing a top and only her underpants below.

[9] When she had gone upstairs last, she had been wearing also jeans and socks.

[10] As a result of a discussion among AB, her mother and father, the appellant was called down. Certain allegations were put to him. Subsequently, the police were involved.

[11] A forensic examination of AB's underpants, which she was wearing when she came downstairs and had been clean on that day, revealed the appellant's semen on them. Four areas were cut out and further examined: the lower front, inside crotch, upper left back and upper right back. These were found to contain sperm in various quantities. The forensic scale, in increasing level of quantity, is from 'traces' to '1+' to '2+' to '3+' with '4+' being the highest. A couple of the patches had levels of 1+ and 2+. One recorded the highest level of 4+.

[12] Swabs taken from AB's left and right buttock disclosed traces of semen..."

[4] At the close of the Crown case, counsel for the appellant submitted that there was no case to answer. The sheriff rejected that submission. The appellant then gave evidence. The sheriff summarised his evidence in his report as follows:

" ... [13] The appellant's evidence ... was that AB had asked him to play doctors. She put bandages on him from her doctor toy set and he had put one on her bare arm. AB went to the toilet. The appellant went to the toilet after AB came out. He locked the door. He masturbated and ejaculated onto the tiled surface between the toilet pan and the wall, having intended to ejaculate into the pan. He picked up what he thought was a cloth to wipe it up, and as he did so realised they were AB's underpants. When he came out, he placed them in a laundry basket next to a towel. He then asked AB's brother CD if he wanted to play a computer game, but CD went downstairs and out to play with someone across the road. So the appellant played himself on the computer a little while. He was aware of hearing someone come upstairs and then go down again, he said. Shortly afterwards, he was called downstairs..."

The defence case was then closed.

Some further details of the forensic evidence

[5] In the course of the appeal hearing, reference was made to Miss Pheasy's verbatim evidence as contained in the transcript. Miss Pheasy gave evidence as to fact, and also opinion evidence.

Evidence as to fact

[6] Miss Pheasy gave evidence about inter alia the following factual matters:

(a) Semen containing the appellant's DNA was found on the pants of the 3-year-old complainer AB on four tested locations.

(b) One such location was the inside of the crotch of the pants, where the material was of double thickness, suggesting that the semen was liable to have been deposited on the inside surface rather than seeping through from the outside.

(c) The large quantities of semen found on the pants indicated that there had been a recent ejaculation so as to provide a substantial source of wet semen.

(d) The lower concentration of semen found on the complainer's buttocks could have been the result of the wiping off of a larger deposit of semen.

Opinion evidence

[7] On the basis of the facts found, Miss Pheasy gave certain opinion evidence. She accepted that she could not know how the semen had been deposited on the pants. She acknowledged that various mechanisms were possible, for example, ejaculation resulting in a direct deposit; vaginal drainage; or secondary contact with a source of wet semen. When asked for her opinion in this case, she stated:

"I would have to go with support for directly deposited on this garment, rather than, perhaps, thrown into a washing basket where a garment got some semen present soaked in ..."

[8] When asked why she chose that scenario, she explained that it was because of the large amount of semen. For that quantity to have been caused by secondary transfer (for example, in a washing basket), the other item would have had to be "absolutely soaked with wet semen". In her scientific opinion therefore, direct deposit onto the pants was her preferred option. Later in her evidence, in cross-examination, Miss Pheasy accepted that whilst direct deposit on the pants was her preferred hypothesis, she was not able to say whether that would have occurred while the complainer was wearing the pants. One way or another, the pants had to have come into contact with a substantial source of wet semen.

The charge to the jury

[9] The sheriff charged the jury, directing them inter alia (at pages 15 to 16) that:

" ... Miss Pheasy also told you, you may remember, that, in her opinion, having regard to the quantities of semen found in AB's underpants it would have been deposited, it could have been deposited there by direct ejaculation from the penis. I think of the two scenarios that she mentioned to the area procurator fiscal when examined in chief by him (the other being transferred from being in contact [in] a wash basket with a garment containing wet semen) she said she would 'go with' the direct ejaculation, and I think she might have mentioned that phrase. But of course, in the course of cross-examination, Miss Pheasy accepted that another explanation might be that the pants had been in contact with wet semen on the carpet, or more likely it could [have been] wet semen from the bathroom floor. You are not bound to accept the evidence of an expert witness such as Miss Pheasy. Her evidence is there for you to accept or reject, but if you accept her evidence that semen was transferred by direct ejaculation, then that is one source of evidence you are entitled to take into account. If you do not accept that evidence, or if you have a reasonable doubt, then there would be insufficient evidence for you to convict the accused and you would be bound to acquit him ..."

Submissions for the appellant

[10] No case to answer: Mr Paterson submitted that the trial judge had erred in repelling a "no case to answer" submission. A significant feature of the case was the lack of evidence from the complainer, saying what had been done to her. It was a purely circumstantial case, with the cornerstone of the Crown case being the forensic evidence. The Crown had relied upon two other pieces of evidence, namely the period of time during which the complainer and the appellant were alone upstairs, and the complainer's mother's evidence that the pants were clean on that day, and also that the child was initially wearing a top, jeans, and socks, but after being upstairs with the appellant, came downstairs wearing only her top and pants. But even when viewed altogether, there was insufficient evidence to establish masturbating in the complainer's presence and ejaculating over her buttocks and private parts. The mechanism whereby the semen came to be on the pants was in issue. There was no other evidence to assist in establishing the mechanism (and therefore the criminal offence). The forensic expert agreed that there could be various scenarios whereby the semen came to be on the pants, and she could not say which scenario had actually occurred. She also agreed that the semen might have been deposited on the pants when the child was not wearing them. Thus some other piece of evidence pointing to a criminal act was necessary. There was insufficient evidence in law to go to the jury. The jury had been left to speculate: cf McD v HM Advocate 2002 SCCR 896. There had therefore been a miscarriage of justice.

[11] Misdirection: Even if the judge was correct in repelling the submission of no case to answer, he nevertheless misdirected the jury in the passage quoted above. He had erred in that he told the jury that Miss Pheasy had given evidence that the semen was transferred by direct ejaculation, and if they accepted that evidence, that would provide one source of evidence which they were entitled to take into account. If the jury were to adopt that approach, they would be speculating as to how the semen was transferred to the pants. That speculation was prejudicial to the appellant, and as a result there had been a miscarriage of justice.

Submissions for the Crown

[12] No case to answer: The Advocate depute contended that the evidence established a circumstantial case sufficient to go to the jury for their decision. The scientific evidence went beyond identification of the DNA in the semen, and included both factual matters (referred to in paragraph [6] above) and opinion evidence. When asked to choose between the various hypothetical scenarios, Miss Pheasy stated that her preferred hypothetical mechanism was direct deposit rather than secondary transfer - the reason for that preference being the large amount of semen on the pants. There were in addition other adminicles of evidence: for example, the complainer having been upstairs alone with the appellant for a period of time; the fact that she was not wearing her jeans or socks when she came downstairs; and the fact that the pants had been put on clean that day. The evidence established a prima facie case against the appellant, and was eloquent of the nature of the crime committed. Reference was made to Fox v HM Advocate 1998 JC 94, 1998 SCCR 115, Lord Rodger at page 126F, and to McGuire v HM Advocate 2003 SCCR 758, Lord Hamilton at paragraph [18]. The case of McD was of no assistance, as that case concerned a failure to ask the right question at the right time. In the result, the circumstantial evidence was sufficient to entitle the jury to draw the inference that the appellant had committed the offence libelled.

[13] Misdirection: The Advocate depute reminded the court that there was no suggestion that the sheriff had misrepresented the evidence in the passage referred to. The jury were being directed that if they accepted that direct ejaculation was one of the ways in which the appellant's semen could have been transferred to the complainer's pants (which was consistent with the forensic scientist's preferred hypothesis) then they were entitled to have regard to those matters when considering all the evidence and assessing whether or not they were satisfied beyond reasonable doubt that the appellant had committed the crime libelled.

Discussion
Whether there was a case to answer

[14] One piece of circumstantial evidence may not be incriminating. What matters is the coherence and concurrence of testimony, the emergence of a pattern, and the inferences which the jury may draw when viewing the circumstances as a whole: Al Megrahi v HM Advocate 2002 JC 99, 2002 SCCR 509 at paragraphs [32] to [36]. Further, circumstantial evidence may be open to more than one interpretation. It is for the jury to decide which interpretation to adopt, and whether to draw the inference beyond reasonable doubt that the accused is guilty of the crime. As Lord Justice General Rodger commented in Fox v HM Advocate 1999 JC 94, 1998 SCCR 115 at page 126F:

" ... It is of the very nature of circumstantial evidence that it may be open to more than one interpretation and that it is precisely the role of the jury to decide which interpretation to adopt."

While Fox concerned circumstantial evidence supporting or confirming direct eye‑witness evidence, the appeal court cited the passage with approval in the context of wholly circumstantial evidence: Al Megrahi v HM Advocate, cit sup.

[15] Thus while we accept that circumstantial evidence may give rise to a number of inferences, if at least one such inference may indicate guilt of the crime charged, then there is a case to answer which should go to the jury.

[16] In the present case, the crime charged is lewd and libidinous behaviour, all as set out in paragraph [1] above. The circumstantial evidence led by the Crown included the following:

·       There was a period of time during which the appellant and AB were alone together in the upper floor of AB's home.

·       Immediately after that period of time together, AB came downstairs wearing only her top and her pants, but not the jeans and socks which she had been wearing earlier. The appellant remained upstairs.

·       Forensic examination identified the appellant's semen on four areas of AB's pants all as described in paragraphs [3] and [6] above; and also on AB's buttocks, both the left buttock and the right buttock.

·       The forensic expert led by the Crown, Miss Pheasy, gave evidence that there could be primary or secondary transfer of semen. Primary transfer would include ejaculation from the appellant's penis onto AB and/or onto her pants; secondary transfer might arise if AB and/or her pants came into contact with another item carrying the appellant's semen.

·       Because of the large quantities of semen, Miss Pheasy gave her opinion that her preferred hypothetical scenario was the direct deposit of semen rather than secondary transfer.

[17] In our view, those strands of evidence, if accepted and viewed together, entitled the jury to draw inferences about what had occurred, at least one of which pointed to guilt on the part of the appellant of the crime charged. There was therefore a case to answer, which the sheriff properly allowed to go to the jury. Thereafter the appellant gave evidence in his own defence as set out in paragraph [4] above. The majority of the jury clearly did not accept his evidence, as they were entitled to do. In that regard, it is worth observing that the appellant's account appeared necessarily to involve soiled pants being retrieved from the wash basket, and thereafter being put on and worn by a three‑year‑old child. That may have been one of the considerations taken into account by the jury.

[18] In the result, we are not persuaded that this Ground of Appeal has any merit.

Whether there was a misdirection

[19] Mr Paterson confirmed that his criticism was not that the sheriff had misrepresented the evidence, but that he had invited the jury to speculate. However we do not agree. The sheriff told the jury that if any piece of evidence raised a reasonable doubt in their minds, or persuaded them that the appellant was not guilty, they should acquit. That said, the sheriff reminded the jury of various pieces of evidence which, if accepted, would contribute to a circumstantial case. He reminded them inter alia that the appellant's semen had been found on the complainer's pants at certain locations; that traces of the appellant's semen had been found on her buttocks; that Miss Pheasy had given evidence about the ways in which semen could be so deposited, accepting that she could not say which scenario had in fact occurred, but giving her opinion that her preferred hypothesis (because of the quantities of semen found) was the primary transference or direct deposit of semen on the complainer's pants.

[20] In our view, the sheriff's charge cannot be criticised. It was for the jury to decide whether to accept all or any of the pieces of evidence to which the sheriff referred, including Miss Pheasy's professional opinion evidence about the preferred mechanism of transfer. We are not persuaded that the Second Ground of Appeal should succeed.

Decision

[21] For the reasons given above, we refuse the appeal.