Appellant: McElroy; Capital Defence Lawyers

Respondent: McSporran, AD; Crown Agent

12 March 2014

[1] On 15 May 2013 after trial before the sheriff at Glasgow and a jury the appellant was convicted of three sexual offences namely, lewd and libidinous practices, a contravention of section 5 of the Sexual Offences (Scotland) Act 1976 and an indecent assault. Charges 1 and 2 were in respect of the first complainer and charge 3 was in respect of the second complainer. The appellant gave evidence. As Mr McElroy who appeared on behalf of the appellant accepted, the trial was relatively straightforward in the sense that what was in issue was simply the credibility and reliability of the two complainers. The complainers had spoken to what they said had happened to them. The appellant had denied that evidence in its entirety. As the Crown had relied on the doctrine of mutual corroboration associated with Moorov v HM Advocate 1930 JC 68, both complainers required to be accepted by the jury as both credible and reliable if there was to be a conviction in respect of any of the charges.

[2] The appellant now appeals. There is a single ground of appeal to the effect that the sheriff did not provide the jury with adequate directions as to how they should approach the evidence given by the appellant and, in particular, failed to tell them what they should do if they believed the evidence given by the appellant or if the appellant's evidence raised a doubt in their minds as to the appellant's guilt. In presenting the appeal Mr McElroy explained that what the sheriff should have done but failed to do was to give a direction which explained that if anything said by the appellant raised a reasonable doubt then the jury should give the accused the benefit of that doubt and acquit, and moreover that even if the jury did not accept everything that the appellant said in evidence, if there was enough to raise a reasonable doubt then the jury must also acquit.

[3] As the sheriff accepted in his report, he did not specifically address the eventuality of the jury believing the evidence given by the appellant or being left in a reasonable doubt as a result of that evidence. He also accepted that he had not adopted the relevant formulation suggested by the Jury Manual. However in order to determine whether a jury has been provided with adequate directions, it is necessary to look at the whole charge. As appears from page 4 of the transcript of the charge the sheriff did direct the jury that:

"If you decide that you do not believe a witness or the accused on a particular matter, then...all it decides is that you do not believe the witness or the accused on a particular matter. If you reject all or part of what a witness or the accused says you ignore the evidence and put it out of your minds. It is essential that you reach your verdict on the basis of the evidence you have heard which you decide to accept as being both credible and reliable..."

The sheriff gave conventional directions on the presumption of innocence, the burden of proof and reasonable doubt at pages 5 and 6 of the transcript:

"Firstly, an accused person is presumed to be innocent of any charge against him. This presumption of innocence exists throughout the case unless or until he is proved to be guilty. No one is required to prove that he is innocent. Secondly, it is up to the Crown to prove the guilt of the accused. The Crown has the burden of proof. The Crown has come to court with this indictment in which crimes are alleged and it is up to the Crown to prove the guilt of the accused, if they can. If they fail to do so then the accused must be acquitted. Thirdly, before the accused can be found guilty the Crown must establish his guilt beyond reasonable doubt. You have heard mention of the words 'beyond reasonable doubt'...that doesn't mean that every fact has to be proved beyond reasonable doubt. What it means is when you consider the acceptable evidence as a whole, you are satisfied beyond reasonable doubt of the guilt of the accused."

The sheriff considered submissions by parties on the evidence at pages 9 and 10 of the transcript:

"Now, in considering the evidence you will want to consider the competing submissions which have been made to you on behalf of the Crown and behalf of the defence. You are free to accept or reject either or any of these submissions....In this case the accused has given evidence and he has also led evidence from witnesses. Treat his evidence in the same way as you treat evidence of any other witness. There is no standard of proof to be met by the defence. The accused's evidence does not need corroboration. In all cases the real question is whether...the Crown has proved its case. If you have a reasonable doubt about that, then the accused is entitled to the benefit of the doubt and he must be acquitted."

At page 11 of the transcript there is this:

"In this case there is sufficient evidence in law to entitle you to convict. It would open to you to do so if the evidence, taken as a whole, is of sufficient character, quality and strength to satisfy you that the Crown has proved its case beyond reasonable doubt. So, there is a sufficiency of evidence here for you to convict if you are satisfied that the evidence, taken as a whole, is of sufficient character, quality and strength to satisfy you that the Crown has proved its case beyond reasonable doubt."

When discussing the doctrine of mutual corroboration the sheriff said this at page 21 of the transcript:

"The defence didn't specifically say anything about Moorov in the defence speech but that would just be down to the fact that the defence position is that Mr Johnston didn't commit these crimes."

[4] Mr McElroy accepted as correct everything that the sheriff had said in the course of his charge. In particular, he accepted the correctness of what appears at page 10 of the transcript where the sheriff directed the jury that they should treat the evidence of the appellant in the same way as that of any other witness. As appears from the passage quoted above, the sheriff then went on to direct the jury that if they had a reasonable doubt as to whether the Crown had proved its case on the basis of the evidence led (which must include the evidence of the accused), then the appellant was entitled to the benefit of the doubt and he must be acquitted.

[5] We accept that it is proper and desirable that a jury should be directed that if they believe exculpatory evidence or if it leaves them in reasonable doubt they should acquit the accused. However, the question in any particular case is whether the jury has been clearly instructed that they require to acquit if, having heard all the evidence, they are left in any reasonable doubt. In certain cases it may be necessary to underline that point by stating in terms that if the evidence of an accused who has given evidence is believed or if it gives rise to reasonable doubt then the jury must acquit. However, it does not follow that it will always be necessary to repeat what has been said in respect of the generality of the evidence specifically in relation to the evidence given by the accused. Here, the case was a straightforward one. The complainers gave accounts of what they said had happened. The appellant denied the truth of these accounts. In our opinion, having regard to the whole terms of the charge, the jury could have been left in no doubt that they had to have regard to all of the evidence, including the evidence of the appellant and that if anything in that evidence gave rise to a reasonable doubt on their part as to the appellant's guilt then they must acquit. We do not consider that in the circumstances of this case there was any need to deal with the appellant's evidence separately from the remainder of the evidence.

[6] We shall refuse the appeal.