Appellant: MC MacKenzie; Gilfedder & McInnes (for Burns & McGregor, Aberdeen)

Respondent: Fairley QC, AD; the Crown Agent

7 November 2013

Facts

[1] On 12 December 2012, at the Sheriff Court in Aberdeen, the appellant was unanimously found guilty of the first charge on the indictment, which libelled that, in the years between 1985 to 1990, at various addresses in Aberdeen, he used lewd, indecent and libidinous practices and behaviour towards DQ, then aged between 5 and 10 years, by removing her lower clothing, touching her naked private parts, licking her naked private parts and touching her private parts over her clothing. Two other charges of a similar nature were withdrawn. A further charge, involving lewd, indecent and libidinous practices towards another young girl, namely MQ, was found not proven by the jury. The appellant was sentenced to 2 years imprisonment with a Supervised Release Order of 12 months.

[2] The complainer is a young relative of the appellant. She gave evidence about the incidents libelled, all of which followed a similar pattern involving extended family gatherings, normally at the home of the appellant and his children. There was heavy drinking by the adults, a failure to look after the children, the female adults falling asleep through drink, the children being put to bed by the complainer (who was the eldest) and the complainer then being targeted by the appellant in the manner libelled.

[3] Corroboration of the allegations came from the complainer's mother. The complainer had told her of one incident of abuse when she was aged 5. The appellant had denied that allegation but several years later admitted it and made further admissions to the complainer's mother about abusing the complainer and boasting about having "got away with it".

[4] MQ gave evidence about being abused herself. The sheriff reports that her evidence was given in a rambling and, at times, incoherent fashion. She sometimes gave answers that bore little or no relation to the questions posed. She had to be warned to concentrate on the questions and to respond to them without making any unnecessary outbursts. In the midst of a lengthy answer to an innocuous question about her childhood, she stated "My sister ... stole car radios and we would go round to (the appellant's)".

[5] The appellant's wife gave evidence which was, according to the sheriff, at times conflicting and inconsistent. At one point during her examination-in-chief, the procurator fiscal had asked her a question along the lines of: "Did you become aware of allegations that the accused abused (the complainer)?" She replied "My husband was never named. I heard that (the complainer) had been abused. They never said to (the appellant) that it was (the appellant) but they said to me that it was (the appellant). They would get me drunk. He was in prison then. He was aye in prison".

Motion to Desert

[6] At the conclusion of the wife's evidence-in-chief, the appellant moved the court to desert the trial diet. The sheriff records that this motion was one that the trial should be deserted simpliciter, although that is disputed and the agent maintains that it was simply a motion to desert. The basis for this application was that MQ had, it was said, suggested that the appellant had been involved in reset. The appellant's wife had then compounded matters by giving evidence that the appellant had "always" been in prison. According to the report from the sheriff, the basis for the application was the general fairness of the trial and was not specifically based upon the prohibition on the disclosure of previous convictions in section 101 of the Criminal Procedure (Scotland) Act 1995. It was the procurator fiscal, in reply, who drew attention to that particular provision. The background, as narrated to the sheriff, included the fact that a previous trial of the appellant on the same charges had been deserted pro loco et tempore because the appellant's wife had stated that the appellant had been in jail. Accordingly, submitted the procurator fiscal, the witness had known exactly what she was doing. The procurator fiscal was unable to confirm that the witness had been properly advised, as she ought to have been, not to repeat her past evidence about the appellant having been in jail, without being specifically asked about that matter.

[7] The sheriff refused the motion to desert. In relation to the evidence of MQ; the sheriff reasoned that MQ's evidence had not been that the appellant had been involved in any criminal activity. The comment had not been a response to a carelessly framed question or anything of that nature. It had been a spontaneous uttering from a befuddled witness in the middle of a long discourse on family life. The appellant's wife, the sheriff concluded, had known exactly what she had been doing. She had otherwise been entirely supportive of the appellant. Again, the sheriff reports, the question posed had not been a careless one and there had been no deliberate engineering by the procurator fiscal to elicit such a response, or any negligence in that regard. There had been no breach of the statutory prohibition.

[8] At the conclusion of the evidence, the sheriff had raised with parties the issue of whether specific directions ought to be given to the jury about disregarding the content of the answers. Both the defence agent and the procurator fiscal submitted that any directions would serve only to aggravate the position. The sheriff took the view that any risk of prejudice to the appellant had not been so great as to make it essential that she direct the jury to ignore any adverse inference which they might take from the references to the car radios or the appellant's life in prison.

Grounds of Appeal and Submissions
[9] The grounds of appeal were twofold. First, it was said that the appellant had been denied his right to a fair trial because of the reference to criminal activity and to the appellant having been in prison. Secondly, it was said that, in seeking a conviction in these circumstances, the Lord Advocate had been acting incompatibly with the appellant's right to a fair trial in terms of Article 6 of the European Convention. In submissions for the appellant, it was accepted that the evidence of the appellant's wife about the appellant having been in prison had not been deliberately led by the Crown and thus that there had been no direct breach of section 101 of the 1995 Act. Section 101 had not, after all, been referred to in the Note of Appeal. Nevertheless, it was submitted at the hearing that there had been an implied breach of that section. The line of questioning, which the procurator fiscal had embarked upon, was said to have been unnecessary and careless, particularly given the reason for deserting the previous trial. It had not been necessary to lead the appellant's wife and the decision to call her had lacked the level of care called for in all the circumstances. The reference to the appellant having been in prison would have entitled the jury to infer that the appellant had previous convictions and was thus of bad character (Deighan v McLeod 1959 JC 25, LJC (Thomson) at 29; Sivero v HM Advocate [2013] HCJAC 1; HM Advocate v Fleming 2005 SCCR 324 and, more recently, Lewry v HM Advocate [2013] HCJAC 62 and Fraser v HM Advocate [2013] HCJAC 117). The sheriff had applied the wrong test in relation to potential prejudice to the appellant.

Decision
[10] As the Note of Appeal was framed, it did not appear that there was any suggestion of a breach of the statutory provision, direct or otherwise. Nor did it appear from the ground of appeal that there was a criticism that the sheriff had applied the wrong test. Had either matter been central to the case, both ought to have been focused in the Note of Appeal, so that they could have been properly addressed by the sheriff. The focus in the ground of appeal is on whether the appellant received a fair trial or not, first according to common law principles. The implication of the submission is that an accused person will not have had a fair trial if evidence emerges in the course of that trial which shows, or tends to show, that he is of bad character.

[11] The issue at the appellate stage is whether the appellant has demonstrated that a miscarriage of justice has occurred. This was a trial on charges of lewd, indecent and libidinous practices towards relatives of the appellant. The appellant himself did not give evidence and there was no question of any assessment by the jury of his credibility and reliability in the witness box. It is accordingly not easy to see what material bearing some form of oblique references to the appellant's previous involvement in reset, or the fact that he had been in prison at some point, perhaps even for a prolonged period, could have had on the jury's deliberations in respect of the particular crimes charged. Indeed, it is evident, from the two verdicts which the jury returned, that they were able to reach discerning decisions, which are clearly not based on anything related to references to the appellant's criminal past.

[12] As was said recently in Fraser v HM Advocate [2013] HCJAC 117 (at para [58]), in a situation where there may have been some form of implied breach of the statutory provision, it is primarily for the trial judge to determine in the first instance, whether that breach has so compromised the prospects of a fair trial, in the domestic sense, that desertion becomes an imperative if a potential miscarriage of justice is to be avoided. Similar considerations apply where evidence of bad character emerges without any attempt by a party to elicit such evidence. In this case, there was no deliberate or careless eliciting of the matters complained of.

[13] Considerable weight must be placed on the views of the trial judge, since he or she has an advantage over the appellate court in having presided over the trial and thus being able to judge the context of the answers within the whole trial process. In Fraser, as in this case, the trial judge took account of all of the relevant factors before deciding that the appropriate course of action was to allow the trial to proceed. In Fraser, the judge elected to give an immediate direction to disregard the answers and to reinforce that direction in his charge to the jury. In this case, having heard submissions on the matter, the sheriff decided it was better to say nothing at the time and to make no further mention of the matter in directions to the jury. In this respect, from the general formulation of her reasoning her report, there is no hint that the sheriff applied the wrong legal test. Having regard to the limited context of the remarks and the lack of potential materiality which they might have had on the issues for determination of the jury, the court is unable to detect the possibility of any miscarriage of justice having occurred as a result of her decision to make no comment at the time or in her charge.

[14] In relation to the specific ground of appeal directed towards a breach of Article 6, the court does not understand that it is any part of Convention jurisprudence that a person receives an unfair trial by virtue of the revelation of previous convictions or past conduct generally; that being a feature of several European systems. The domestic approach to fairness in this area is far more protective of accused persons than the requirements, implied or otherwise, in Article 6.

[15] In these circumstances, this appeal must be refused.