Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 15

HCA/2015/2096/XC

Lord Justice General

Lady Paton

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

APPEAL AGAINST CONVICTION

by

WALTER MASOCHA

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Scullion QC; John Pryde & Co (for Levy & McRae, Glasgow)

Respondent: Edwards AD; the Crown Agent

9 February 2016

Introduction
[1]        On 27 April 2015, at Falkirk Sheriff Court, the appellant was found guilty of two charges which libelled that:

“(3)      on various occasions between 1 April 2012 and 30 March 2013 ... at Church of Agape, Cosyneuk House, Sauchieburn ...  you ... the minister there, did sexually assault [JG] ... in that you repeatedly put your arms around her, press your body against her, touch her on the body, vagina, pubic area, buttocks, breasts and face and kiss her on the face and neck; CONTRARY to Section 3 of the Sexual Offences (Scotland) Act 2009;

and

(4)        on various occasions between 01 January 2013 and 27 January 2014 ... at Church of Agape, Cosyneuk House, Sauchieburn ... you ... the minister there, a person who had attained the age of 16 years, did engage in sexual activity with or towards [PC] ... a child who had attained the age of 13 years but had not attained the age of 16 years, in that you did kiss her on the lips, touch her on the body and place your hands on her buttocks and pinch her buttocks; CONTRARY to Section 30 of the Sexual Offences (Scotland) Act 2009”.

The appellant had originally appeared on five charges, but the first charge, involving a complainer TG, had been withdrawn by the Crown at the First Diet.  The second and third charges, re-numbered first and second on the indictment, involving a complainer GG, were withdrawn during the course of the trial.  The appellant was sentenced on 16 June 2015 to a Community Payback Order involving 250 hours of unpaid work in the community.

The evidence
[2]        The appellant became the founder and spiritual leader of the Church of Agape in about 2007.  Much of the Church activity took place at Cosyneuk House, Sauchieburn, which was the home of the appellant and his family.  The appellant had his own office in the premises to which access was restricted.  The complainers were members of the Church.

Complainer 1
[3]        The complainer in charge 3 gave evidence regarding five specific assaults.  The first occurred in the office in April 2012, when the appellant had hugged her, caressed her back, kissed her neck and the side of her face and pressed his body against hers. The second was in March 2013, again in the office, when the appellant had the complainer kneel down in front of him and, beginning by touching the top of her head, he had worked his way down her body, blessing parts of her body as he did so and eventually touching her chest, bottom, between her thighs and then her legs and her toes.  The third incident was in mid-2012 when appellant hugged the complainer by lifting her off her feet and kissing her on the neck more than five times.  The fourth occasion was on the same day, when he touched her stomach and moved his hand down her body to her private parts, touching her vagina.  The final incident occurred in December 2012 or January 2013 when the appellant had said “come on, are you not going to give your daddy a hug”.  She had not replied.  The appellant had put his arms around her, lifted her up and started to kiss her neck with his lips.

[4]        In the course of cross-examination, a number of e-mails were put to the complainer.  These had been sent by her to the appellant after the events libelled.  In particular, on 15 March 2013, she had written:

“I love you Daddy.  Was just thinking of you NOW in my kitchen.  I was thinking of your voice, your presence your cuddle.  I love you Dad.”

Finally, on 27 March 2014, she had written:

“Daddy Daddy Daddy my hero my bestest Daddy my mentor my advisor my rock.  I know you busy in Egypt but I want to encourage you so that you know you have a real daughter out there who is willing to go yonder with you no matter what. ...

I love you wish I could hug you right now.”

On 20 October 2014, she had written:

“... I misinterpreted your deep heavenly love for me for abuse.  The love you have for me is not understood by the human mind, and in my spiritual weakness and distress I misunderstood that love you had for me for abuse.  You did nothing wrong to me and all you ever wanted was to raise me up as your daughter.  In your grace if you allow me I want to clear your name publicly, and restore your reputation to the world.”

The complainer accepted that she had written these e-mails.  She said that they were true when they had been written. 

[5]        There was evidence taken from this complainer about the Church finances.  She appeared to be suggesting, during the course of her examination-in-chief, that there had been some misconduct in that regard by the appellant.  This was subsequently contradicted by the Church’s treasurer.

Complainer 2
[6]        The complainer in charge 4, who was born in 1998, spoke to four incidents.  First, sometime in the course of 2013, she had been called into the appellant’s office.  She had been made to put her hands on the appellant’s chest.  He had placed his hand on her chest around her left breast.  A couple of months later, the complainer had been sitting in the livingroom when the appellant had come over and sat beside her.  He put his right hand on her left thigh.  He ran his hand up and down her thigh.  The third incident was in late 2013, when the complainer was in a games room.  The appellant had come in, put his hand around her lower back and run it down until it got to her underwear, which he began to ping.  He slid his hand down her bottom and pinched it.  The final incident was in early 2014, when the appellant was in the dining room.  The complainer was kneeling by his chair.  He said “you always be mine” and kissed her on the lips. 

[7]        In the course of her evidence, the complainer was referred to a particular blog, which she initially denied seeing.  Later, under cross-examination, she accepted that she had effectively lied about this in court.

[8]        The third witness for the Crown was GG, who was adduced in support of the then charges 1 and 2.  GG denied that anything untoward had happened towards her.  She accepted that she had made a relatively detailed statement to the police containing the allegations in the original libel.  These involved being induced to massage the appellant when she was under 13 and later when she was under 16.

[9]        In due course the appellant led TG, the former complainer in the original charge 1.  She too spoke to having made certain allegations about being induced to massage the appellant, which she had then withdrawn.  She denied the truth of these allegations in evidence.

Sheriff’s Directions
[10]      When it came to directing the jury, the sheriff gave a number of standard directions in relation to credibility and reliability.  However, he had prefaced his remarks with the following:

“... the prosecution indicated that it was no longer seeking a conviction on charges 1 and 2 ... they’re no longer before for your consideration.  You can forget all about them.

...

            So to be clear ... the evidence of [TG] and [GG] remains available for your consideration as part of the evidence in this case but the fact that there may at one time have been other charges against [the appellant] is something that you must ... put out of your mind altogether and which must not influence your decision in respect of the remaining charges.”

The sheriff continued by explaining what evidence was and what it was not, before stating:

“So before you can accept a piece of evidence from a witness, you must be satisfied that it is honest and that it is reliable.  Now in doing that, you can look at the content of a witness’s evidence, you can look at ... their demeanour and body language while giving evidence and, of course, you can compare what one witness says with other evidence in the case.”

[11]      The sheriff explained that he did not intend to go over the evidence in any detail.  He did not touch upon any specific aspect of the evidence at all.  He made it clear, in the context of mutual corroboration, that, for a conviction to follow, the jury had to accept both the complainers on the remaining charges as credible and reliable.  He had already directed them that, if they believed the accused when he said that he had not committed the offences, they required to acquit.

[12]      The sheriff gave the standard directions on mutual corroboration; notably the need for similarities in character, circumstance, place and time, such that the crimes can be seen as so closely linked as to give rise to an inference that the accused was pursuing a single course of criminal conduct.  It was not enough if all that was shown was a general disposition to commit this kind of offence.  The rule required to be applied “with caution”.

Submissions
[13]      The appellant advanced five grounds of appeal.  First, the sheriff had erred in failing to direct the jury on the specific grounds upon which the defence had attacked the credibility of the two complainers.  The defence case had gone further than challenging the truthfulness of their accounts.  It had raised substantive issues upon which specific directions had been required; notably, in relation to JG’s interest in having the appellant convicted for reasons unrelated to the charges; the evidence of a possible conspiracy against the appellant and collusion between the complainers; and the admission of PC, to the effect that she had committed perjury in relation to a central issue in the case. 

[14]      Secondly, the sheriff had misdirected the jury by omitting to direct them in relation to the prejudicial evidence given by JG about the finances of the appellant and the Church.  There ought to have been a specific direction that the evidence from JG on this matter had no bearing on their assessment of whether the appellant had committed the offences. 

[15]      Thirdly, the sheriff had misdirected the jury in failing to give them directions in relation to the evidential value of prior statements used to undermine the credibility and reliability of both complainers.  In relation to the first complainer, the tenor of the e-mails had suggested that the complainer was on good terms with the appellant and that she had behaved in an affectionate manner towards him throughout the period in the libel.  The sheriff erred in concluding that the e-mails did not fall to be treated as prior statements requiring direction.  The second complainer’s evidence had been undermined in that she had originally said that she had not read the blog prior to making the allegations against the appellant.  She had then admitted reading it.       

[16]      The fourth ground was that the sheriff had misdirected the jury in failing to tell them about the evidential value of the prior statements containing the allegations made by TG and GG.  The Crown had accused both witnesses of lying and had suggested to them that the information, which they had originally provided to the police, had been true.  Each had been asked to tell the jury about their earlier statements.  A direction from the sheriff on this matter had been essential and not a matter of discretion (Lumsden v HM Advocate 2012 JC 133, Lord Malcolm at para [4]; Haggerty v HM Advocate [2009] SCL 810, Lord Hardie at para [6]).  A miscarriage of justice had occurred because the jury might have accepted the original allegations as true and gone on to take that into account in assessing the evidence of the complainers on the remaining charges.

[17]      The fifth ground of appeal was an entirely separate one, to the effect that the sheriff had failed to give adequate directions on the application of mutual corroboration between the two charges. 

[18]      In response, in relation to ground 3, the Crown contended that the e-mails were not properly categorised as prior inconsistent statements and therefore no specific directions were required. 

[19]      In relation to ground 4, the Crown had conceded in advance of the appeal hearing, that a misdirection had occurred.  However, it had not been a material one because any direction, which ought to have been given, would have been to treat the evidence of the two former complainers with caution.  It was accepted, however, that it would also have involved directing the jury that they could not use these statements as proof of fact.

Decision
[19]      It is worth emphasising what the court has said on several occasions about the functions of the trial judge in cases involving straightforward issues of credibility and reliability.  The evidence is for the jury to analyse and assess and a judge should take care not to trespass upon the jury’s province (Younas v HM Advocate 2015 JC 180, at para [56]). 

[20]      The issues of credibility in this particular case were well focused.  The contentions of fact had been dealt with by the Crown and defence in speeches which were, no doubt, appropriate in the context of this trial.  As a generality, there was no need for the sheriff to select the various different aspects of the case, highlighted by the Crown or defence, and to repeat these contentions in his directions.  It would have been obvious to the jury that the case involved a consideration of whether the two complainers ought to be accepted as credible.  The sheriff had given them a clear direction that, for a conviction to follow, they required to accept both complainers as credible and reliable in their essentials.  The jury had been presented with a number of suggestions from the defence in relation to a potential conspiracy, or the existence of extraneous motives to lie.  There was no need for the sheriff to revisit these matters.  There is, accordingly, no substance in the first or second grounds of appeal.

[21]      In relation to the third ground, the court is not persuaded that the contents of the e-mails amounted to prior statements which were inconsistent with the evidence of the witness in court.  On the contrary, the witness accepted the truth of what she had said in the e-mails as representing her views or feelings at the relevant time.  No directions beyond the general were needed.  For the same reasons as given in relation to the first and second grounds of appeal, there was no need to give a particular direction on the complainer’s admission of perjury.

[22]      Ground 4 presents a greater difficulty.  It is accepted by the Crown, as it was bound to be, that there was a misdirection by omission in failing to direct the jury on the limited use to which the prior inconsistent statements, that is to say the allegations of TG and GG about their activities with the appellant, could be put.  This evidence was hearsay and it was incumbent upon the sheriff to direct the jury as to its value.  In particular, the direction ought to have included that these statements could not be used as proof of fact, when the witnesses had denied their truth.  Given the acceptance that there was a misdirection, the issue then is whether the misdirection was material in the sense of one which resulted in a miscarriage of justice.

[23]      The sheriff gave directions, albeit of a limited nature, which initially told the jury to forget all about charges 1 and 2.  He later said that they could put the charges out of their minds and not let those charges influence them in relation to the remaining charges.  Nevertheless, there were somewhat contradictory directions given to the effect that the evidence of the former charges remained for their consideration and, subsequently, that they were entitled to compare what one witness, such as a complainer, had said with other evidence in the case.  That other evidence would have included the testimony in relation to the prior inconsistent statements of the former complainers about the massages on the appellant.

[24]      In these circumstances, a miscarriage of justice has occurred.  In the absence of the required direction, the jury were left in a position whereby they would have been able to accept the content of the original allegations made by the former complainers as having been true.  They would have been able to go on to take these episodes into account in assessing the evidence of the complainers on the remaining charges, which also concerned events of a sexual nature.  Such an approach ought to have been discounted by a direction to the opposite effect.  For these reasons, the court will quash the convictions. 

[25]      For completeness, the directions on mutual corroboration were both standard and adequate.  It was not contended that the circumstances of the two remaining charges were not capable of affording mutual corroboration.  The offences were all of a sexual nature, committed at about the same time and in exactly the same place.  In these circumstances, there was no need for any elaborate analysis of the doctrine of mutual corroboration.  The directions given would have given the jury a clear account of what was required.