APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Menzies Lord Wheatley	[2012] HCJAC 87 Appeal No: XC387/11 OPINION OF THE COURT delivered by LORD MENZIES in APPEAL AGAINST CONVICTION by PMG Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: M Mackenzie; J P Mowberry, Glasgow

Respondent: Scullion, AD; Crown Agent

12 June 2012

Introduction

[1] On 12 April 2011 at Dumfries Sheriff Court the appellant was found guilty by majority on indictment of the following charge:

"(001) on various occasions between 15 February 2003 and 14 February 2008 both dates inclusive at ... [two addresses], Langholm and in a caravan in Great Yarmouth you PMG did use lewd, indecent and libidinous practices and behaviour towards ... [a girl], born ... 1996, ... and did get into bed with her, rub her legs and bottom, masturbate yourself in her presence, ask her to touch herself sexually, make inappropriate remarks to her, force her to watch pornography on a computer."

The evidence at trial

[2] It is first necessary to explain the relationship between the complainer, the appellant, his wife and the witnesses. Witness A was the mother of B, born in 1984, and the complainer, born in 1996. B married the appellant. The appellant ran a small business from home. He employed his mother-in-law, witness A, as a cleaner. The complainer had a friend, witness C, who had gone to the same primary school as her.

[3] The Crown case relied upon the evidence of the complainer and corroboration from an incriminating statement made by the appellant to witness A.

[4] The complainer spoke to acts of sexual abuse over the five year period. She was asked by the procurator fiscal depute about what complaints she had made about the abuse. She had written about it in her diary. Her mother, A, had found the diary and asked her about the abuse (Transcript of evidence, 5 April 2011, pp 17-18). The complainer had also told C's grandmother, in C's presence, that the appellant had been touching her (p 69 lines 4-7). This happened when the complainer asked to stay at the grandmother's house.

[5] Witness A spoke to the terms of the diary entry (7 April 2011, p 12, lines 16-19):

"I'd found ... [the complainer's] diary, notebook, in her room and in it she'd wrote something. I think it was .... P had touched her either 'down below' or 'down there' and she didn't like it and there was a little sad smile. Well, not a smile, but a sad ... an upside down smile.".

[6] A asked the complainer whether what she had written was true, which the complainer confirmed. A did not ask her any more details. A confronted the appellant at his offices later that day. A described the confrontation in the following exchange (pp 20-22):

"PROCURATOR FISCAL DEPUTE: And what did you do when you got upstairs? -I asked him if what ... I'd read was true.

What did he say? - He didn't answer at first and ... I asked him again and ... he just sat quiet ... and he said something. I think he said, ... 'I didn't mean to,' and ... he didn't know why he'd done it.

Did he say anything else? - ... I said to him, 'How could you do something like that, knowing what ...that [the appellant's wife - B] had already been through that?'"

What ...? - She [B] was abused. And he said he just did, he didn't know why.

...

What else was said? - ... I said to him that ... [the complainer] had told me what he'd done and ... I just said again 'Why did you do it?' and he says he didn't know and then he ... [started] feeling sorry for himself saying that ... he should just go hang himself and he shouldn't be around kids.

You said he was feeling sorry for himself, how was that showing? - The way he was crying.

What else was said? - ... by this time I went and sat down on the couch and he came across and he went down on his knee and he says, 'Please don't tell ... [B].'

Was he still crying? - I think he'd stopped by then. ... he just said ... 'You can't tell ... [B], it would kill her."

What did you say to that? - I said, 'Well,' I says, 'I can't not say anything ... what you've done's wrong,' ... and he said, 'Yeah, I know,' and I think then he said he would just do away with himself.

What was said after that? - ... I says, 'No, you don't need to do anything like that,' I says, 'we just need to get it sorted.' And because I'd known him for a long time I ... gave him a second chance.

How did you give him a second chance? - 'Cause I never said anything.

Where was ... [the complainer] while all this was happening? - She was downstairs.

Did she come up at all? - She did. I asked her to come up. He wanted to say sorry.

And did he say sorry to ... [the complainer]? - He gave her a hug and said 'sorry,' and he didn't want her to be frightened of him ..."

[7] C was a primary school friend of the complainer. The procurator fiscal depute's line of questioning was unusual (7 April 2011, pp 77 -78):

"PROCURATOR FISCAL DEPUTE: Did you ever stay over with your granny? - Yeah.

Did anybody else ever stay over with your granny? - ... [the complainer] did.

Was that once or more than once? - more than once.

Do you know how many times? - ... seven or eight or more.

Do you know when she first stayed over with your granny? - ...when we were about six or seven, just round about then.

Sorry, who was six or seven? - ... [the complainer].

Did ... [the complainer] ask your granny if she could stay? - Yeah.

And were you there? - Yeah.

And how did ... [the complainer] seem when she was asking your granny if she could stay? - Just, ehm, normal. She didn't show anything.

... I just want you to answer yes or no to this. - Okay.

... Did she tell your granny why she wanted to stay at her house? - Yeah.

And how did she seem at that point? - Ehm, still normal really.

Right, that's all I wanted to ask you about ... [the complainer]."

The procurator fiscal depute's speech

[8] The procurator fiscal addressed the jury in particular on why the complainer had not told more people, earlier, of the abuse. The procurator fiscal depute told the jury that the complainer had informed C's grandmother. She went on to say (transcript, p 12, lines 1-5):

"Now, there are strict rules of evidence in the court and I was not allowed to ask ... [C] what ... [the complainer] told her granny, but ... [C] did confirm that ... [the complainer] did ask to stay."

[9] The sheriff in his report observed that the procurator fiscal depute's comments were most unfortunate. He thought they gave the impression there was incriminating evidence which the Crown was prevented from introducing because of "technical" rules of evidence.

The sheriff's charge

[10] The sheriff gave certain general directions of the usual kind regarding the jury's task. He specifically noted:

"Now, one thing I have to say ladies and gentlemen is that your conclusions and findings have to based on the evidence, you can't speculate or guess. If you don't know something, you don't know it, you make your decision on the basis of the evidence (p 7, lines 7-10).

[11] The sheriff made the following observations on C's evidence (p 31, line 11 et seq):

"Her evidence seems to be of, what I say limited help, I don't mean that it's of no help, how limited, how helpful it is, is a matter for you. She's speaking essentially about ... [the complainer] asking to stay over at [C's] granny. Now that's all her evidence is. Simply that's all her evidence and what significance there is you must attach to that. Mrs McGill [the procurator fiscal depute] said something to you that potentially could be misleading and it must be put out of your mind because it could be misleading. She said she wasn't allowed to ask what the witness said because of technical rules of evidence. You mustn't assume that ... [the complainer] said to this witness anything because you don't know and it goes back to what I said earlier you don't know, therefore you can't speculate or guess."

The Grounds of Appeal

[12] The appeal proceeds on two grounds:

1. The learned sheriff erred in repelling the submission advanced on behalf of the appellant in terms of Section 97A of the Criminal Procedure (Scotland) Act 1995.

Properly understood there was insufficient evidence in law to prove the charge against the appellant.

The first source of evidence was the complainer. To corroborate her evidence the Crown sought to rely upon evidence about a conversation between complainer's mother A, and the appellant that took place after A had read an entry in the complainer's diary.

Reference is made to directions to the jury at page 17, line 17 to page 19, line 7 of the charge.

The witness did not direct a specific allegation to the appellant. The appellant's response was not, properly understood, an admission. It lacked necessary specification. The response was accordingly not capable of constituting corroboration of the evidence of the complainer. There could be no certainty as to the meaning of the comment made by the appellant and it was not proper to leave the matter to the jury. Reference is made to Gracie v HM Advocate (2003 SCCR 105).

It is accordingly submitted that the learned Sheriff erred in law in repelling the submission in terms of Section 97A.

Accordingly there has been a miscarriage of Justice.

2. The appellant has been denied his right to a fair trial in terms of Article 6(1) of the European Convention on Human Rights.

The Crown led evidence at the trial from C. This witness was 13 years of age when she have her statement to the police and she was a friend of the complainer. It is clear from her police statement that her evidence contained in its significant parts, inadmissible heresay. Objection was taken to the leading of the inadmissible heresay evidence in advance of the trial. The Crown nevertheless led the witness in evidence.

Reference is made to the Charge to the jury, page 31, lines 4-22. Without the inadmissible heresay the evidence of C was, as described by the Sheriff, "of limited help".

In her closing speech to the jury the procurator fiscal depute, appearing for the Crown, made reference to the evidence of C and stated to the jury that she had not been allowed to ask the witness certain questions because of "technical rules of evidence".

It is submitted that in leading the evidence of C and in making these observations to the jury the Lord Advocate, through the procurator fiscal depute, was acting incompatibly with the appellant's right to a fair trial as guaranteed by Article 6(1). Reference is made to Section 57(2) of the Scotland Act 1998.

Separatim the directions given to the jury by the sheriff (Charge, page 31, lines 16-22) were insufficient in the circumstances to ensure that the appellant's trial was fair. His directions served to remind the jury that the natural inference that flowed from the Crown leading the evidence of C was that the complainer had indeed said something of relevance in relation to the charges faced by the appellant.

In all the circumstances the appellant has been denied his right to a fair trial.

Accordingly there has been a miscarriage of justice.

Submissions on Ground 1

[13] In support of her submission that there was insufficient evidence to prove this charge, Miss Mackenzie referred to the sheriff's report, in which it was stated that the complainer gave evidence about a number of indecent incidents between the appellant and her over the relevant period, but only one of these was, in the opinion of the sheriff, capable of being corroborated. The complainer spoke of an incident in which she had got into bed, the appellant got into bed with her and rubbed her legs and bottom. The complainer stated that she wrote something in her diary about this, and a few days after it happened her mum saw the diary and talked to her about it. She was not asked specifically what she had written in the diary, nor what she said to her mum, and the diary was not produced in evidence.

[14] The only possible corroboration came from the complainer's mother, witness A. Apart from the general evidence at page 12 of the transcript (quoted at paragraph [5] above), A gave no further details about what was written in the diary, nor about what the complainer told her. A then confronted the appellant about what she had read, but again she was not asked to (nor did she) give details of what she read, nor what allegation she put to the appellant. Although the sheriff observed in his report that "to my mind, the accused was made sufficiently aware of the accusation against him and his whole actings in response were sufficient to infer he had admitted an indecent act towards [the complainer]", there was no basis in the evidence for this assertion. Indeed, the sheriff went on to accept that "there was ambiguity and room for doubt if there had been an admission of guilt but on the whole evidence, if believed by the jury, there was sufficient evidence for them to be so satisfied."

[15] Counsel submitted that for an admission by the appellant to be used to corroborate the evidence of the complainer, there required to be evidence of the specific allegation to which the admission related. In support of this proposition she relied on Gracie v HM Advocate 2003 SCCR 105. There was no evidence in the present case of the detail of the allegation against the appellant, and without this detail, his response and/or demeanour cannot corroborate the evidence of the complainer.

[16] In response, the Advocate depute submitted that given the complainer's clear and unequivocal account of what took place, very little corroboration was required - W M D v HMA 2012 HCJAC 46. Moreover, the sheriff erred in his approach to the evidence, by looking at each of the surrounding circumstances and assessing in isolation the corroborative effect of each individual circumstance. Instead, he ought to have looked at the whole evidence to assess whether it supported the evidence of the complainer - Al Megrahi v HMA 2002 SCCR 509.

[17] The Advocate depute accepted that the complainer's diary was not corroborative, and was never produced in evidence. However, there were several other adminicles of evidence which were corroborative of the complainer's account; the sheriff made mention of some of these in his charge, but fell into error by directing the jury that these could not be used for corroboration, and that the only corroboration of the complainer's account of the first incident was to be found in the appellant's admission to the allegation made by A.

[18] In any event, the Advocate depute submitted that it was open to the jury to decide that the appellant was confronted by A with an allegation of his sexual abuse of the complainer, that he admitted this, and became upset. There was evidence of a clear, unequivocal admission of indecent behaviour towards the complainer. The circumstances of the present case can be distinguished from those in Gracie v HMA. In Gracie, there was no evidence about the details of the police allegations which were discussed in the telephone call which was relied on as corroboration. The circumstances of the present case were different - there was a clear allegation of sexual abuse of the complainer, it was clear that the appellant understood this, he cried and then apologised to the complainer.

Submissions on Ground 2
[19] Miss Mackenzie noted that the sheriff stated in his report that the remark made by the procurator fiscal depute to the jury was "most unfortunate", and that it was his opinion as trial judge that this statement did potentially give rise to a miscarriage of justice. It was for this reason that the sheriff included the direction in his charge which is quoted at paragraph [11] above. Counsel submitted that this direction was insufficient to remedy the prejudicial effect of the remark. In his report, the sheriff observed that "it is a matter for your Lordships whether anything I could have said to the jury could have redressed this problem." Counsel submitted that no direction would have served to cure the problem in the circumstances of this case, where the credibility of the complainer was a material issue. In this case, more than in many others, there was a potential for a miscarriage of justice arising from this remark, given that the credibility and reliability of the complainer were put in issue, and the appellant was convicted by a majority verdict. The effect of the remark was that the appellant was denied a fair trial.

[20] In response, the Advocate depute explained that there had been an agreement prior to the trial between the procurator fiscal depute and counsel for the appellant that if the complainer gave evidence as to why she wished to stay with C's granny, the procurator fiscal depute could properly ask C about this. When C stated that the complainer seemed normal when she told C's granny why she wanted to stay at her house, the procurator fiscal depute decided that she would not pursue this issue further with C. Because of this, C's evidence ended abruptly. The comment by the procurator fiscal depute in her speech to the jury was, although unnecessary, nothing more than an explanation as to why C's evidence ended so abruptly. The sheriff overstated the significance of this comment. The complainer had already stated in evidence (and without objection) why it was she wanted to stay at C's granny's house - because she was scared to go to her sister's in case "P done it to me again". There was accordingly no mystery about this matter. There was no motion to the sheriff that the trial should be deserted. The question of what directions, if any, are needed to clear up errors or inaccuracies in speeches by counsel is very much one for the trial judge's direction - McGhee v HMA 1992 SCCR 324. The sheriff dealt with this matter adequately in his charge, and there was no miscarriage of justice.

Discussion
Ground 1

[21] Evidence of the reaction of the appellant to a specific allegation of sexual misconduct or criminality may, in appropriate circumstances, serve to corroborate the evidence of the complainer. If the appellant made an admission of guilt to a specific allegation by A, or if he expressed remorse for his actings which was only consistent with an acceptance of guilt or responsibility for the misconduct or crime alleged, that may serve to corroborate the complainer's evidence. If it is to do so, however, we consider that there must be clear evidence of the allegation which is put to the appellant. An admission of guilt, or conduct consistent with guilt, cannot be relevant without evidence as to the allegation which prompted the admission or conduct.

[22] In the present case, the complainer was not asked to give details as to what she wrote in her diary. She stated that her mum "read it in my diary, because I put it in my diary", and the procurator fiscal depute asked her "so you wrote something in your diary about it?", to which the complainer replied "yeah." The matter was not explored further with the complainer in evidence. The diary was not produced. The only evidence from witness A about what the complainer wrote in her diary is the passage quoted at paragraph [5] above. Witness A was not asked about the terms of the allegation which she put to the appellant. As noted at paragraph [6], she was asked "and what did you do when you got upstairs?", and she replied "I asked him if what ... I'd read was true." There was no further questioning about the allegation; the examination of the witness A then turned to the appellant's response.

[23] The evidence of A about the appellant's response might suggest that the appellant was admitting that he had been guilty of some sexual misconduct towards the complainer. However, we consider that the content of an allegation is so central to the evidential value of the response that it is essential, if the prosecutor is to rely on the response as having corroborative value, that evidence is obtained of the detail of the allegation. This is consistent with the view expressed by the court in Gracie v HMA at paragraph [9]. In the circumstances of the present case, the absence of evidence concerning the details of the allegation is, in our opinion, fatal. The jury were left to speculate as to the content of the allegation, and the meaning of the appellant's statement as an admission of guilt.

[24] The point was touched on by the sheriff in his charge to the jury (at page 18, line 21 to page 19, line 5), where he asks

"whether it can properly be construed or understood as an admission to the specific incident that [the complainer] was talking about because [A] doesn't put the incident to him, did you get into bed with [the complainer], rub her legs and rub her bottom. Now that's quite an important point and it's a matter for you when you review the evidence if you accept the evidence of both [the complainer] and her mother whether that in the first place can be construed as an admission of that first incident, and it's only if you reach the view that it can, that you can find corroboration."

We consider that this passage in the charge amounts, in effect, to an invitation to the jury to speculate as to the content of the allegation. As there was no evidence about the detail of the allegation, the response of the appellant was not material which the jury could properly take into account. The response of the appellant was the only adminicle of evidence which the sheriff identified as being capable of corroborating the evidence of the complainer. It follows that the sheriff ought to have sustained the submission advanced on behalf of the appellant in terms of section 97A of the Criminal Procedure (Scotland) Act 1995, and he erred in law in not doing so. We shall accordingly allow the first ground of appeal.

[25] Before turning to the second ground of appeal, we observe that the submissions by the Advocate depute that the sheriff erred in law in directing the jury that other adminicles of evidence could not corroborate the complainer's evidence are not relevant to this issue. The ground of appeal is directed to the sheriff's decision to repel the submission in terms of section 97A. We cannot re-write the directions which the sheriff gave to the jury in his charge, which were in any event given after he had repelled the submission in terms of section 97A.

Ground 2

[26] In his report the sheriff described the comments made by the procurator fiscal depute in her speech to the jury as "most unfortunate". We share that view. It is important that prosecutors should be careful in their comments when speaking to the jury. It is particularly important that they should refrain from giving the impression that the jury may not have heard all the available evidence, and that there was a body of incriminating evidence which the Crown was prevented from leading because of "technical" rules of evidence.

[27] However, as the Advocate depute observed in his submissions to us, there was no mystery as to what the complainer told C's granny. The complainer gave evidence about this herself. In these circumstances we are satisfied that the directions which the sheriff gave to the jury in his charge, which are quoted at paragraphs [10] and [11] above, appropriately addressed the point. No motion was made for the trial to be deserted pro loco et tempore, and we do not consider that such a course of action would have been justified in the circumstances of this case.

[28] For these reasons we shall refuse the second ground of appeal, but as already indicated, the appeal will be allowed on the first ground.