Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 71

HCA/2015-003574/XC

Lord Justice Clerk

Lady Paton

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY DORRIAN, THE LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION

by

PRW

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  I Paterson Sol Adv; Paterson Bell, Edinburgh

Respondent:  A Cottam, AD, Crown Agent

26 August 2016

[1]        The appellant was convicted of three historic charges of lewd, indecent and libidinous practices and behaviour towards two complainers aged between 4 and 7 (AB and DE);  he was also convicted of the rape of DE and of another child, FG, who was aged between 9 and 10.  A further charge of lewd and libidinous practices towards another child CB was withdrawn at the close of the Crown case.  The charges covered in total a period between 5 August 1987 and 25 April 1999.  The trial took place in October 2015.  It was a matter of agreement that the matters under consideration had first been reported to the police during 2012 and 2013. 

[2]        There were numerous similarities surrounding the commission of the offences, such that the doctrine of mutual corroboration was, by concession, applicable.  Broadly the complainers AB, CB, DE and FG all gave evidence that they were sexually abused by the appellant when they were young girls.  They all gave evidence that the abuse occurred when they were in the temporary care of the appellant during outings to swimming pools, or during activities surrounding these outings.  In the course of the trial evidence was led from three witnesses (including the complainer CB) in relation to hearsay statements on prior occasions by the complainer AB in which she had complained of the behaviour alleged against the appellant, in greater or lesser detail.  Evidence of a similar nature was led from two witnesses in relation to hearsay statements made on earlier occasions by the complainer FG.  This evidence was led without objection and the trial judge advises that both the Crown and the defence sought to explore the area of what the complainers had said to others on these occasions. 

[3]        One of the witnesses who spoke to the hearsay evidence of AB was a therapist who gave hearsay evidence relating to an interview and assessment of AB to explain the circumstances in which she had prompted AB to make a complaint to the police. 

[4]        In the course of the appeal the solicitor advocate for the appellant, who had appeared at the trial, explained that he had taken the view that the Crown were entitled to lead all the evidence referred to in anticipation that a direction would follow.  The evidence was admissible primary hearsay on the basis that it was used to explain the actions of the individuals to whom it had been disclosed (this applied for example in relation to the evidence of the therapist and of the witness MN who spoke to hearsay of FG).  All this was relevant to explain the long gap between the dates of the offences and the complaint to the police and to counter any allegations of fabrication on that account.  In relation to the hearsay of the witness FG, the hearsay evidence also became relevant as a prior consistent statement of the witness since her evidence was challenged on the basis that it was completely fabricated and the hearsay evidence would be relevant to counter these allegations. 

[5]        The trial judge did not direct the jury in relation to the effect of this evidence or the use to which it could be put.  Although the relevance of the evidence was conceded, it was submitted that the trial judge had erred in failing to direct the jury about it.  In particular the jury should have been told that although the evidence was available for the limited purpose referred to, it was not available as proof of fact and did not provide corroboration of the evidence of the witness in question.  The absence of such a direction constituted a material misdirection and a miscarriage of justice since, in the absence of a direction, there was a serious risk that the jury might have used the evidence for the purpose of corroboration.  Furthermore the trial judge had given directions to the jury in relation to what constitutes evidence, and how evidence might be used.  In particular attention was drawn to directions at pages 5-7 that:-

• “Evidence is everything that has been said to you by all of the witnesses in the evidence which they gave…So what the witnesses have said is evidence.”

   

• “The contents of any reports or documents which were read out by witnesses are also evidence for you… Everything that has been read out to you, for example, the witness who read from her notes when she was dealing with AB’s interview and her assessment, that’s evidence before you as well”.

   

• “The whole of the evidence given to you in this trial is available to you in consideration of any charge, to be used by you as you see fit.”

[6]        This direction was supplemented by directions that evidence in relation to one charge was available, where relevant, in relation to another charge and that included:

• “anything said by CB in her evidence before you which you consider, on a fair and balanced view, to be relevant to any of the other charges on the indictment which remain”.

[7]        Attention was also drawn to directions at pages 13 and 18 as to the drawing of inferences, specifically the direction that:-

• “It is entirely for you to decide what weight you attach to the evidence of any witness, or to any individual piece of evidence, as it is entirely for you decide what inferences you with to draw from facts which you found established”.

[8]        The trial judge had given correct directions that corroboration in this case required to be found by the application of the Moorov doctrine.  However, his directions to that effect were inconsistent with the directions to which reference has just been made as to the general nature of evidence and use to which it could be put by the jury.  This inconsistency increased the risk that the jury might have used the hearsay evidence for an improper purpose, namely corroboration. 

[9]        We are unable to accept these submissions.  In the parts of the charge quoted above the trial judge made it clear that he was dealing with generalities as to what constitutes evidence and how it may be used.  At page 23 of his charge, just before the lunch adjournment, he advised that after the adjournment “I will give you the directions which you will have to apply to your consideration of the evidence in this case, but I hope that what I have said to you thus far assists you in the way that you approach the evidence and deal with it.”  After the adjournment, at page 25, he commenced his directions in relation to the evidence specifically in the case in question as follows:  “I am going to go on to give you legal directions in relation to the evidence here.  You have to apply these legal directions to your consideration of the evidence.”  The trial judge therefore moved from generalities to specifics.  That he was doing so would have been quite clear to the jury.  Having moved to specifics relating to the trial in question, he gave very clear directions on the issue of corroboration.  First, at pages 29 to 30 he explained the normal rule of corroboration.  He then went on to consider how this applied in the present case.  His directions were as follows:-

“… How does this rule apply here, when each of these charges which you have to consider separately, there is only one source of evidence?  And I can say to you that it is correct that that single source of evidence in each charge, the complainer .. the witness who complains of the acts referred to in the charge .. that complainer is uncorroborated in the sense that there is no independent, supporting piece of evidence, and so in each of these charges her evidence stands alone.  So you ask well how does that tie in with rule of corroboration?” (pages 30 to 31).

[10]      The trial judge went on briefly to explain the nature of mutual corroboration returning to more detailed directions from page 42 of his charge.  It is accepted that his directions in this regard were entirely correct.  In these directions he made it clear that to apply the rule the jury required to believe each individual complainer, and that if they did not believe any complainer, the charge in respect of which that witness is a complainer could not stand nor could it provide corroboration of another complainer.  He repeated this at page 44 stating:

“If you do not believe a witness, the charge in which she is a complainer cannot stand and she cannot provide corroboration of another complainer, even if you believe that other complainer.  If you do believe a witness, a complainer on one charge, then you have to find corroboration for her from a second credible and reliable complainer who speaks to a different charge.”

[11]      In our view the directions of the trial judge at pages 30, 31 and 44 make it abundantly clear to the jury that in relation to each of the charges there is only one source of evidence namely the complainer herself, and that the only way in which corroboration could be found for the individual complainers was in the application of the Moorov doctrine.  We accept, as the advocate depute did, that it would have been preferable for the trial judge to have directed the jury that the evidence in question could not be used as proof of fact or for the purposes of corroboration, but it appears to us that in light of these very clear directions there was no risk that the jury might be misled into thinking that the hearsay evidence referred to above might be used by them as corroboration. 

[12]      Towards the end of his submission Mr Paterson supplemented his case and argument by a further submission that the jury might have used the hearsay evidence to enhance the credibility of the individual witnesses.  However in relation to the witness FG it is quite clear that the evidence could competently have been used for that purpose.  It was also relevant for a similar purpose, perhaps to a lesser extent, in relation to the evidence of AB given the agreement that the evidence was relevant for the purpose of explaining the gap in time between the incidents alleged and the complaint to the police, and to counter any allegation or suspicion of fabrication on that account.  We do not see that the absence of a direction on this point one way or the other was material.

[13]      For the reasons given we do not consider that there was any material misdirection and the appeal will be refused.