Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 46

HCA/2015/002080/XC

Lady Paton

Lord Menzies

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY PATON

in

APPEAL AGAINST CONVICTION

by

BRIAN NEWMAN

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  D Hughes;  Paterson Bell, Edinburgh (for Barnetts, Kilmarnock)

Respondent:  Farquharson AD;  Crown Agent

 

13 May 2016

Introduction

[1]        The appellant was born on 6 June 1956.  On 8 May 2015, he was convicted after trial of a series of sexual offences committed against boys residing in a children’s home where he had been employed as a care worker.  He was sentenced to 13 years imprisonment.

[2]        The offences of which the appellant was convicted comprised lewd and libidinous practices (charges 2, 3, and 12);  indecent assaults (charges 4, 7, 8, and 10);  attempted penetration of the boy’s anus with his penis (charge 5);  and sodomy (charges 9 and 11).  The charges, abbreviated to some extent, were as follows:

Charge 2:  10 October 1991 to 6 March 1992, lewd and libidinous practices towards AA aged 13, “and did make comments of an inappropriate sexual nature to him, enter his private bedroom while he appeared to be sleeping, sit on the bed, place your arm on his penis, touch him on the body, place your hands under his bed covers, handle his penis, kiss him on the mouth and cuddle him.”

Charge 3:  8 October 1992 to 28 August 1994, lewd and libidinous practices towards BB aged 12-13, “and did enter his private bedroom there while he was sleeping, sit on the bed, place your hands under his bed covers, handle his penis under his underwear and masturbate him, place his penis in your mouth, lower your trousers and underwear, place his hand on your penis, attempt to induce him to place your penis in his mouth and cause him to masturbate you.”

Charge 4:  29 August 1994 to 25 April 1996:  indecent assaults on BB aged 14-16, in particular “enter his private bedroom while he was sleeping, sit on the bed, place your hands under his bed covers, handle his penis under his underwear and masturbate him, place his penis in your mouth, lower your trousers and underwear, place his hand on your penis and cause him to masturbate you.”

Charge 5:  on an occasion between 29 August 1994 and 28 August 1995, assault  BB aged 14, “and did whilst he was sleeping and incapable of consenting, remove his clothing, lie on top of him, attempt to penetrate his anus with your penis and attempt to have unnatural carnal connection with him.”

Charge 7:  2 February 1994 to 23 August 1995:  indecent assaults on CC aged 15-17, “and did make comments of an inappropriate sexual nature, grab his testicles over his clothing, place your hand in his lower clothing and handle his penis, touch his nipples, enter his private bedroom, expose your penis, and you did place your penis in his mouth.”

Charge 8:  23 March 1995 to 19 January 1996:  indecent assaults on DD aged 14-15, “and did rub his penis over his clothing, handle his penis under his clothing.”

Charge 9:  on an occasion between 23 March 1995 and 19 January 1996:  assault DD aged 14-15 “and did rub his body, remove his clothing and penetrate his anus with your penis and have unnatural carnal connection with him to his injury.”

Charge 10: 24 January 1995 to 30 September 1997: indecent assaults on EE aged 15-17 “and did, in his private bedroom and in a staff room, place your hands under his bed covers, handle his naked penis and masturbate him, rub your body against his, and rub him against your body, place his penis in your mouth, kiss him on the mouth, lower your trousers and underwear, place his hand on your penis and cause him to masturbate you, attempt to place your penis in his mouth, rub your body against his and cuddle him.”

Charge 11:  on an occasion between 1 May 1997 to 30 September 1997:  assault EE aged 17 “and did rub yourself against him, and penetrate his anus with your penis and have unnatural carnal connection with him.”

Charge 12:  21 November 1995 to 23 June 1996:  lewd and libidinous practices towards FF aged 11-12 “and did lift up his T-shirt and blow on his stomach, enter his private bedroom there and whilst he was sleeping, pull down his clothing and you did masturbate his penis.”

Charges 5, 9 and 11 involved acts (or attempted acts) of penetration of the boy’s anus with the appellant’s penis.

[3]        The appellant appeals against conviction.  Each ground of appeal alleges a misdirection by the trial judge.  Counsel submitted that the nature and number of errors created confusion on key aspects of the case, and that the grounds of appeal, both separately and cumulatively, contributed to a miscarriage of justice.

 

Ground (a) The judge’s charge directed the jury to ignore the defence contention that the complainers were motivated by a desire for money.

[4]        At pages 2-3 of his charge, the judge directed the jury as follows:

“ … Evidence is the evidence the witnesses give when they give their evidence in the witness box.  It’s their answers.  It’s what they say that matters, … their answers to questions, not the questions themselves.  Though … if a question is put to them, and they agree with it, well then of course that’s part of their evidence;  but if a question is put to them and they don’t agree with it, then the question doesn’t have any … status as evidence”

 

[5]        At page 8 of his charge, the judge further directed the jury:

“ … If you reject a witness’s evidence or part of it, it doesn’t prove that the opposite of what they’ve said is true.  Any evidence you reject simply falls to be ignored and left out of account altogether.  An obvious example is where a person denies allegations put to him and, for example, you have the various boys being asked whether they were … it was being suggested that they were … out for, for monetary gain from making these allegations and they denied it, if I recall correctly.  It’s up to you whether you think they were telling the truth, but if you didn’t think they were telling the truth, it wouldn’t follow that there was any evidence they were going out for monetary gain.  You simply put it out of account altogether.  Treat them simply as allegations which are not supported by evidence.”

 

[6]        We are not persuaded that this ground of appeal is well-founded.  The charge must be read as a whole.  The words challenged occurred in a passage where the trial judge explained to the jury the well-established rule that if they did not accept a piece of evidence, that did not mean that the opposite was true:  they should simply set that piece of evidence aside. The judge took that particular cross-examination of the complainers, during which a possible motive behind their allegations was put to them, as an illustrative example, and explained that if the jury did not believe the boys’ denials, that did not mean that there was any positive evidence that their motive had been to make money.  It should be added that there was, in fact, no other evidence which might have provided a basis for the conclusion that a complainer was simply making up the allegations for money.  In the result, the passage in the judge’s charge cannot, in our view, be criticised.

 

Ground (b) The judge erred in rejecting the “no case to answer” submission in respect of charge 9.

[7]        Counsel for the appellant submitted that the sole evidence in relation to charge 9 came from the complainer DD, who spoke of being intoxicated after a drunken night out, partially undressed, being at one point on the bed in the presence of the appellant, and waking up later feeling strange, with a “sore bum”.  There was no other evidence, such as evidence of injury to his anal region.  DD said in terms: “I don’t remember anything inappropriate”.  He could not explain how the soreness had come about.  Counsel submitted that the starting point for Moorov had to be a complete charge, and not a vague inferential charge which required support from other facts and circumstances.

[8]        We accept that in the case of Moorov v HM Advocate 1930 JC 68, there was direct eye-witness evidence of each individual criminal act.  However there is nothing in Moorov, or in the dicta of Hume, Alison and Dickson (on which that decision was based) to suggest that there must always be direct eye-witness evidence of a particular criminal act before that act can be used as a component in mutual corroboration.  Decisions such as Lindsay v HM Advocate 1993 SCCR 868 and Mason & McDougall v HM Advocate 2008 SLT 656 paragraph 9 and 10 make it clear that identification by inference can found mutual corroboration.  There is no reason in logic or principle why the position should be any different in relation to the commission of a crime.  We note that in a recent decision, Lees v HM Advocate [2016] HCJAC 16, it was held that one of the sources of evidence which could be used in the application of the Moorov doctrine could be the hearsay evidence of a deceased person, using section 259 of the Criminal Procedure (Scotland) Act 1995.  As Lord Carloway explained:

“ … [t]here is no requirement that the two sources of evidence be direct testimony from eye-witnesses.  It is entirely legitimate to prove a case using, for example, one witness speaking to one incident and the hearsay evidence of a deceased speaking to a second incident.”

 

[9]        In our view therefore the question arising in respect of charge 9 is whether there was sufficient evidence from DD which, if accepted by the jury, gave rise to an inference that he had been sodomised. If so, that evidence would then be capable of providing a basis for corroboration in terms of Moorov in the usual way.

[10]      We answer that question in the affirmative.  We understand from the judge’s report, and from the Advocate depute who conducted the trial (and argued this appeal) that DD gave evidence that:

• He was, at the relevant time, aged 14 or 15, and was living in the children’s home.
• He had been to the beach with BB, and had become very drunk on cider (which he had never drunk before).
• He expected to be treated severely on his return to the home:  however the appellant had unexpectedly treated him gently.
• The appellant had taken the complainer in his drunken state upstairs to his bedroom.
• The complainer thereafter woke up three times:  he found that he was in bed, totally naked (whereas he normally wore “both top and bottoms” in bed).
• On one of the three occasions, he awoke (naked) to find the appellant lying in bed with him (and, according to the Advocate depute’s note of the complainer’s evidence) rubbing his back. 
• When he woke up next morning, “ … he felt awful.  He felt as if he had run a marathon.  He did not feel right at all.  He was really sore in his bum, in his anus.  It was painful, uncomfortable when he went to the lavatory.  He did not know what had caused it.  He remembered that he was wearing nothing when he woke up, whereas he would normally wear both top and bottoms when in bed …” (judge’s report page 21). 
• DD’s evidence was that “he did not remember the appellant doing anything inappropriate” (judge’s report page 21).

[11]      We note that our attention was not drawn to any other evidence in the case, emanating from DD or any other source, of some other circumstance or mechanism which might have explained the sudden onset of the significant pain in the complainer’s anal region.

[12]      In our opinion, the evidence from DD in respect of charge 9 – if believed – was sufficient for the jury to draw the inference that the complainer, while drunk, lying in bed naked and drifting in and out of consciousness, had been sodomised by the appellant.  We are not therefore persuaded that the judge erred in repelling the section 97 submission.

 

Ground (c) The judge erred in directing the jury that they were entitled to use the evidence in respect of charge 9 as the evidence which they could consider (together with the evidence in respect of charges 5 and 11) when deciding whether or not to apply the Moorov doctrine.

[13]      In respect of this ground of appeal, counsel reiterated his submission that, for the Moorov doctrine to be applicable, there had to be at least two independent incidents with direct evidence relating to the actus reus in each incident.  Thus in respect of each incident, there had to be the direct evidence of an eye-witness that acts amounting to a crime had been perpetrated.  Furthermore, the evidence of each incident had to be independently acceptable:  it was not possible to bolster the credibility or reliability of an eye-witness speaking to one incident by referring to the evidence of another eye-witness speaking to another incident (cf obiter dicta of Lord Malcolm in Dreghorn v HM Advocate 2015 SCCR 349 at paragraph [41] et seq, and the commentary by Sir Gerald Gordon QC at page 382 of E (A J) v HM Advocate 2000 SCCR 341).

[14]      In our opinion, it is not essential that there be direct eye-witness evidence in respect of each incident relied upon for a possible application of the Moorov doctrine (cf paragraph [8] above).  In the present case, the evidence relating to charge 9 entitled the jury to draw an inference (see paragraphs [10]-[12] above).  If the jury found DD credible and reliable, and if they drew that inference, they were entitled, in our opinion, to use the evidence relating to charge 9 together with such evidence as they found credible and reliable relating to charge 5 and/or charge 11, such that they could apply the Moorov doctrine if they so chose, and find corroboration by that means. 

[15]      We should add that we do not consider this to be a case in which either the differing obiter views in Dreghorn (in particular paragraphs [35] and [45] to [48]) or the comments by Sir Gerald Gordon on E(AJ) v HM Advocate have any direct bearing.  The question raised in this appeal is the sufficiency of the evidence relating to charge 9 in the context of Moorov, rather than any attempt to bolster DD’s credibility or reliability by reference to what other witnesses said.  While there was a reference to other complainers at page 38 of the judge’s charge, we consider that the charge as a whole gave the jury a proper structured approach for them to adopt when considering the Moorov doctrine (charge pages 44 to 50).  In particular the jury were given a clear warning that they could not use DD’s evidence for the application of the Moorov doctrine unless they accepted him as credible and reliable (cf the discussion relating to ground of appeal (g) below).  Reading the charge as a whole, any reference to other complainers did not, in our opinion, amount to a misdirection.  Esto the reference at page 38 were considered to be a misdirection, the nature and volume of the evidence in this case was such that we are satisfied that no miscarriage of justice occurred.

 

Ground (d)  The judge misdirected the jury in relation to the concepts of speculation and reasonable inference from circumstantial evidence.

[16]      At pages 9-10 of his charge, the judge directed the jury in the following terms:

“ … I’ve said already that you must decide the case on the evidence you’ve heard in court.  Now can I be clear about that.  That means you mustn’t guess or speculate in the absence of evidence.  So don’t guess or speculate, but you can, or course, draw inferences from the evidence you’ve heard, but that’s quite different from guessing or speculating in the absence of evidence, and can I try and illustrate that point in this way.  You see someone coming out of a bank.  You don’t know, without any more information, whether he’d gone in there to pay money in, to take money out, to discuss a mortgage or a loan or some sort or anything of that sort, open an account.  You simply don’t know and if you try to say … what he was doing, you’d be guessing.  You’d be speculating.  But if when he came out, you saw him stop and put a whole lot of notes into his wallet, … you would be entitled to … draw the inference that he’d gone into the bank in order to draw money out.  It wouldn’t necessarily be right.  There might be other factors, … but at least there would be some basis for you to … draw an inference that that’s what he’d gone in for.  And so that’s the difference.  I hope that illustrates the point.  Decide on the evidence, but don’t guess or speculate …”

 

[17]      Counsel for the appellant submitted that the direction was wrong.  The analogy of a person visiting a bank was not appropriate to the facts of this case.  It was proper for the judge to give a direction as outlined in the jury manual (viz “Where circumstantial evidence is based on accurate observation, and the correct conclusion is drawn from the facts and circumstances, it can be as good as, or even better than, direct eye-witness evidence”).  However the judge did not do so.  His direction was inadequate to allow the jury correctly to analyse the various aspects of circumstantial evidence.

[18]      We do not accept this submission.  In our opinion, the “bank” example was neither inappropriate nor erroneous.  The example emphasised that the jury should not simply make guesses or try to reach conclusions without any evidential basis;  that it was their task to consider the evidence, decide what they accepted, and then in a rational manner decide if an inference could properly be drawn from facts established by evidence which they accepted.  We are not therefore persuaded that the judge misdirected the jury on this matter.

 

Ground (e) The judge’s direction did not make clear that conduct amounting to lewd and libidinous behaviour required to be deliberate.

[19]      Counsel for the appellant submitted that the judge’s charge was ambiguous and confusing on the question whether the behaviour amounting to lewd and libidinous conduct in charges 2, 3 and 12, had to be deliberate, rather than accidental.

[20]      In his report at page 40, the trial judge observes:

“ … The relevant part of my charge is at page 18 line 11 to page 20 line 17.  I will not set it out in full.  It is correct that at page 19 line 12 I said that the Crown did not need to prove anything about intention on the part of the accused, but I went on at page 20 line 1 to make it clear that the conduct had to be deliberate.  The distinction I was drawing, as the note of appeal acknowledges, was that, although there was no requirement to prove an intention to corrupt, the conduct complained of had to be deliberate.  I do not think that there is really any room for uncertainty in what I said.

    I would add this.  This direction relates to charges 2, 3 and 12.  The conduct alleged in those charges, which the jury unanimously found proved … consisted of acts which self-evidently, if they were committed, were committed deliberately.  There was no possible issue as to whether the acts were done deliberately or inadvertently.  The only issue was as to whether the acts were done at all, a point I made at page 20 lines 6-17.  If they were done at all, they were obviously done deliberately …”

 

[21]   We agree.  We do not accept that there was any ambiguity which might have resulted in confusion on the part of the jury.  In our opinion, there is no merit in this argument.

 

Ground (f) Similarly the reference to the Crown not having “to prove anything about intention” caused confusion when the crime of assault was defined.

[22]      Counsel for the appellant submitted that the confusion referred to above was compounded by the judge’s definition of “assault” at pages 22 to 24 of the charge regarding charges 4, 5, 7, 8, 9, 10 and 11.  Again there was ambiguity about whether something accidental (for example, accidental touching) could be an assault, and whether or not the Crown had to prove that the conduct complained of was deliberate, bearing in mind the direction that the Crown need not prove anything about intention on the part of the appellant.

[23]      We note that the trial judge directed the jury inter alia as follows:

“[page 23] … Now an assault, in law, is any deliberate attack upon another person with evil intent … [page 24] And the assault must be deliberate.  So accidental touching, of course, is not an assault …” 

 

[24]      At page 41 of his report to this court, the trial judge draws attention to inter alia those passages and continues:

“ … I do not see any room for doubt that the jury would have understood full well that the crime of assault involved conduct on the part of the accused which was deliberate.

    I would just make the same point as I made in relation to the previous ground of appeal, namely that the acts which the jury found proved to have been committed in these charges were all acts which of their nature, if done, must [have] been done deliberately.  The real question for the jury was whether the acts were done at all.  If so, it was obvious that they were done deliberately …”

 

[25]      Again we agree.  We are not persuaded by counsel’s submissions under ground of appeal (f).

 

Ground (g)  The judge misdirected the jury in relation to the assessment of credibility and reliability in the context of the possible application of the Moorov doctrine.

[26]      Counsel for the appellant drew attention to a passage at page 47 of the judge’s charge, where, having explained (at page 46) that corroboration by way of the Moorov doctrine might be available where they were satisfied that “the alleged offences were sufficiently interrelated in time, place and circumstance and formed part of a single course of conduct, systematically pursued by the accused”, the judge (at page 47) continued as follows:

“ … And so, the question on that aspect for you to consider is, are the circumstances spoken to by the different complainers which you’ve heard, and on this basis I assume you find them … credible and reliable, are they sufficiently interrelated in time, character and circumstances so that the evidence of one complainer can provide the independent support needed to corroborate the evidence of other complainers?”

 

Counsel submitted that the judge, in that passage, unequivocally directed the jury to find the witnesses’ evidence credible and reliable, thus inappropriately and unfairly bolstering the credibility and reliability of critical Crown witnesses, to the detriment of the defence case.

[27]      As already noted, the charge must be read as a whole.  The judge had previously directed the jury as follows:

“[page 2] … you, and you alone, are responsible for deciding on the facts of the case, based upon the evidence you’ve heard in court, and what I, or anyone else, may think of the evidence is irrelevant.  It’s a matter for you entirely, both for your recollection of what the evidence was, for your impression of the witnesses, your assessment of the witnesses, your assessment of who’s telling the truth, who’s lying, who’s reliable, who’s unreliable, and so on …

[page 5]  … Now, you will have to evaluate the evidence you’ve heard, decide which witnesses you think were honest and which were not honest and what evidence you found reliable or didn’t find reliable … [the judge gives further assistance with the difference between honesty and reliability, referring inter alia to how the witnesses gave their evidence] …

[page 44] … if you don’t accept the evidence of the complainer on any particular charge, then you acquit of that charge because … there wouldn’t be an adequate basis to convict.  So each charge stands or falls in the first place on the evidence of the relevant complainer.  If you’re satisfied the complainer is honest and reliable about the particular charge or charges involving him, then you have to ask what corroboration there is, because you can only convict on a particular charge if you … have some corroboration.”

 

[28]      The judge then proceeded to give the jury directions that they could, if accepting a complainer as “honest and reliable about the particular charge or charges involving him”, find corroboration for that complainer in the evidence of another complainer or complainers whose evidence they accepted, in accordance with the Moorov doctrine.  Thus he clearly directed the jury that it was only if they found a particular complainer honest and reliable could they move on to consider the next stage, the finding of corroboration in the evidence of another complainer or complainers whom they accepted as credible and reliable.  The passage complained of at page 47 is simply a recapitulation of the condition precedent of finding corroboration by way of the Moorov doctrine, namely, that the jury must have already found the particular complainer (or complainers) credible and reliable.

[29]      It will be seen, therefore, that we do not accept that the passage at page 47, set in context, could be regarded as a misdirection.  We reject the appellant’s argument under ground of appeal (g).

 

Decision

[30]      For the reasons given above, we refuse the appeal against conviction.