Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 85

HCA/2015/3512/XC

Lord Justice General

Lady Paton

Lord Menzies

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

APPEAL AGAINST CONVICTION AND SENTENCE

by

SEAN BARRY MOYNIHAN

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Scullion QC; Gilfedder & McInnes (for McCusker, McElroy and Gallanagh, Johnstone)

Respondent: I McSporran AD; the Crown Agent

5 October 2016

Introduction
[1]        On 29 June 2015, at the High Court in Glasgow, the appellant was found guilty of the rape of AP on a cycle track in Johnstone on 2 October 2014.  He was made the subject of an Order for Lifelong Restriction with a punishment part of 9 years.  In the course of the cross-examination of the complainer, statements which were inconsistent with her testimony were put to her.  In his charge to the jury, the trial judge made no mention of these statements.  The appeal against conviction raises the issue of whether it was incumbent upon the judge to advise the jury of the use to which such statements might be put.

The Evidence
[2]        The complainer testified that she was 19.  She was walking home on the cycle path between Johnstone and Linwood.  At about 2.30pm the appellant, whom the complainer referred to as “Sean”, went past her as if he was out jogging.  The complainer said that the appellant was a stranger to her.  He had then stopped and put his hands on his knees as if resting.  She walked past him.  He disappeared for about two minutes before coming up behind her and holding a knife to her throat.  He put his arm roughly around her shoulder and walked her some distance into the trees.  He told her to take all her clothes off, which she did.  He put his jumper down and told her to sit on it.  He still had the knife.  He threatened to stab her.  She was crying by this time.  He kissed her on the lips and penetrated her digitally.  She had ended up on her hands and knees.  He put his penis in her mouth.  He had put on a Halo condom and then raped her.

[3]        The complainer had been terrified.  She had various scratches to her legs, hands, arms and lower back as a result of the incident.  She had lost her headphones, which were recovered at the scene.  Afterwards, the appellant had told the complainer to sit down for 10 minutes to let some people pass on the path.  She had a cigarette in the trees.  She had not smoked any cannabis, although a roach was found later on the path.  At some point, the appellant had told her that his name was Sean, although he was known as Gavin.  The appellant had asked her about her mother and step-father.  She had told him her first name.  She might have told him her surname.

[4]        The appellant and the complainer had then walked back to the path.  As she was looking in her hand bag, he was suddenly “gone”.  The complainer met a male friend as she walked away.  She told him what had happened.  After contacting three other male friends, she phoned her step-father to pick her up as “something bad” had happened.  He did that, along with the complainer’s mother, and phoned the police.  

[5]        The complainer gave a short statement to the police at her home and a fuller one the next day (3 October).  The latter (Pro 26) is a 13 page hand-written prose narrative of events recorded by the police.  It is signed by the complainer on each page.  Certain parts of it were put to the complainer in cross-examination.  The first extract contained a description of the complainer being pushed into the “bushes” and walking “a short bit in”.  The appellant had let her go and was standing in front of her.  The statement continues “It was then that I seen he had a knife”.  The complainer agreed that this is not what she had said in her evidence because “everything’s mixed up in my head, and I’m nervous”.  It was hard to remember whether she had told the police that the first time that she had seen the knife was when she was already in the bushes.  When giving her statement, she was getting confused and mixed up.  The line taken in cross was that the complainer had made up the bit about the knife to explain why she had not screamed or struggled when still on the path.  It was also put that the complainer had referred to the appellant in her testimony as Sean because she had met him at Tesco in the weeks before the incident.  The complainer denied meeting him at Tesco.

[6]        The cross continued by asking the complainer about certain personal information about herself, which the appellant had been able to narrate when he was later interviewed by the police.  One aspect of this was that she had told the appellant that she did not have a boyfriend because “all guys are psychos”.  The complainer accepted that she could have said this, but could not remember. A second statement (Pro 28), dated 7 October, was put to the complainer.  Again this is a handwritten prose narrative recorded by the police and signed on each page.  On the third of the five pages, it states “I remember when I was sitting … after it happened, him asking me if I had a boyfriend – I told him ‘no’ as they’re all psychos”.  The complainer accepted that this was “information” which she had provided to the police, but she could not remember it.  She explained that “everything’s been a mess for me … I can’t think straight”.  She said that she had been telling the police the truth and accepted that it appeared that this was a conversation that she had had with the appellant.  The complainer admitted having Halo condoms in her house, but said that she would not have carried them about.

[7]        The next matter related to the end of the incident.  It was put to the complainer that the appellant had told her that he was going to get his car at Elderslie and that she had seen him walking off in that direction.  She denied this.  She maintained that she had no idea of where he had gone.  The context of this line was the fact that the complainer had her phone with her and could have called the police immediately after the appellant had left.  The complainer denied telling the friend, whom she had met shortly after the incident, where the appellant had gone.  She said that she did not think that she had told him that she had seen the appellant walk off towards Elderslie.  She could have said this, but could not remember.  The contention was that the complainer did not want the appellant found by the police.  She had not told the police that the appellant had handled her phone and that his fingerprints might be on it.  She explained that “At that point, everything was all overwhelming and it was hard to, like, say everything”.  She did not want to hand over her phone in case she did not get it back.  She accepted that she did not tell the police that her assailant’s name was Sean until 7 October, when she said that the police mentioning a person called “Gavin” had triggered this memory. 

[8]        The appellant did not testify.  He had been interviewed by the police.  He maintained that he had previously met the complainer at Tesco and they had flirted with each other.  Subsequently, he had just got lucky one day when he had met her again on the cycle path and she had initiated sexual contact.  She had provided the Halo condom.  After the incident, they had conversed and the complainer had smoked a joint.

[9]        The police failed to recover the relevant images from Tesco’s CCTV system, despite having been asked to do so by the appellant’s law agents.  There was evidence from a passer-by that he had noticed a male and a female in the bushes.  He had not noticed anything untoward.  Both had looked at him.  The male friend, whom the complainer had met, adopted part of his statement to the police that the complainer had told him that her attacker had walked off towards Elderslie.

[10]      The trial judge reports that the defence may have succeeded but for one mistake, indicating that the appellant’s account had been too clever.  The appellant had told the police that he had kissed the complainer passionately and deeply.  He thereby knew that she had a tongue pierced with a stud.  The complainer had never had a tongue piercing, but a friend did have.  The appellant had mixed up the photographs of the two girls on Facebook, where he had also acquired intimate knowledge of the complainer’s lifestyle and had thus been able to provide the police with details of it.

Speeches and Charge
[11]      The advocate depute approached the issue of the complainer’s credibility and reliability partly by anticipating the defence speech.  She dealt with the complainer’s use of the appellant’s first name when first describing the incident in court.  She mentioned that the complainer had not initially told the police that the appellant had told her his name.  This had been explicable because of the complainer’s state of mind.  She had provided a detailed description of the appellant and later identified him on emulator sheets and a VIPER identification parade.  Even if the appellant and the complainer had met at Tesco previously, would that have mattered?  In relation to the roach, the advocate depute had asked the jury to apply the “so what” test.

[12]      The advocate depute turned to the discrepancy between the complainer’s testimony and her statement on the point at which she had seen the knife.  Again, the “so what” test ought to be applied.  This was a matter of detail, “an understandable misrecollection in the circumstances of a terrifying ordeal at knifepoint some time ago”.  In relation to the other matters about her phone and what she had told the friend about where the appellant had gone after the incident, they were all for the jury “to weigh up when you decide whether to accept her evidence or not”.

[13]      The defence speech was a comprehensive one.  It focused on the account given by the appellant at interview and its coincidence with other evidence in the case, notably that of the passer-by.  The complainer’s action, in not immediately contacting the police or her parents, was referred to.  Counsel then turned to the evidence of the complainer and explained:

“… it is often said in these courts that in order to assess whether a witness has given honest and reliable evidence, you should check whether the witness had been consistent when asked to describe those events.  If someone changes their story every time they’re asked to describe an event, it may cause you to doubt whether they are telling the truth, or at least to doubt whether you are prepared to rely on the accuracy of their account”.

He asked the jury to compare the complainer’s testimony with what she had said to the police, especially about the time when she had first noticed the knife.  He suggested that the complainer had changed her account to explain why she had not screamed and struggled.  After dealing with other matters, counsel dealt with the discrepancy between the complainer’s testimony about where the appellant had gone and her description to the male friend, whom she had met shortly afterwards.  Reference was made to the complainer’s failure to mention the appellant’s name when first, or second, interviewed.  It was suggested that the complainer was not telling the truth.  She was trying to avoid providing the police with information which would have led to the identification of the alleged attacker.

[14]      The trial judge’s charge is succinct.  It commences by referring to the speeches.  The judge directed the jury that they must “give equal attention to what each has said in support of his or her own case, and in criticism of the other’s”.  He explained that, whereas the speeches had focused on the evidence, he had to deal with the law.  He gave the jury the standard directions on credibility and reliability, stating that, if any of the evidence caused a reasonable doubt, the jury had to acquit.  Towards the end of his charge, the judge added:

“I have not dealt with the evidence in any detail as both the advocate depute and [counsel for the defence] have dealt with it perfectly adequately in the course of their speeches”.

The judge did not explore the evidence at all.  In that respect his charge might be described as in the traditional mode.  It did not mention the significance of prior inconsistent statements.

Ground of Appeal and Submission
[15]      The ground of appeal relates to the absence of directions on the evidential value of prior inconsistent statements used to challenge the credibility of the complainer.  Particular emphasis was placed on the defence contention that the complainer had withheld information, which would have assisted the police in identifying the alleged assailant, notably that he had told the complainer his name during the incident and that, after the incident, he had walked off in the direction of Elderslie.  The discrepancy in the appearance of the knife was stressed, as was the conversation about all boys being psychos.  The fundamental point was that the complainer had previously made statements which differed from her evidence.  In these circumstances, the trial judge ought to have directed the jury on the evidential value of these prior statements, which were admissible in terms of section 263(4) of the Criminal Procedure (Scotland) Act 1995.  This was a requirement and not a matter for the judge’s discretion (Niblock v HM Advocate 2010 SCCR 337, LJC (Gill) at para [17]; Haggerty v HM Advocate [2009] HCJAC 31, Lord Hardie at para [6]; Lumsden v HM Advocate 2012 JC 133, Lord Malcolm at para [5]).  The judge had failed to direct the jury that they could compare the complainer’s testimony with what was contained in her statements.  This error was compounded by a failure to give the jury the standard direction on how to approach inconsistencies in the evidence (Munro v HM Advocate [2010] HCJAC, Lord Carloway at para [23]).  The misdirection had been a material one.

 [16]     The advocate depute conceded that the failure to give any direction on “the evidential value” of prior statements had amounted to a misdirection.  However, it had not been a material one and had not resulted in a miscarriage of justice.  The timing of the knife’s appearance was a minor inconsistency.  The content of the statement had not been adopted, nor had that relative to the “psycho” remark.  Their relevance, and that of the statement about the appellant’s post incident direction of travel, was restricted to testing credibility and reliability.  They were peripheral in the context of what was a strong Crown case.  Parties had dealt with the issue in their speeches.  Although the charge was silent on the value of the statements, there had been clear directions on how to assess the complainer’s testimony in general.  The jury were directed on the need to accept the complainer’s evidence before they could convict.  Niblock v HM Advocate (supra) was concerned with the significance of the adoption of part of a statement necessary to prove identification.  Lumsden v HM Advocate (supra) involved a previous complete denial that the offence had happened.  In Haggerty v HM Advocate (supra) it was held that the misdirection had not resulted in a miscarriage of justice (see also DS v HM Advocate 2012 SCCR 319).  It would have been clear to the jury that the inconsistencies were to be taken into account in assessing the complainer’s credibility and reliability.  Munro v HM Advocate (supra) had not said that a direction on inconsistencies was essential.

Decision
[17]      In Younas v HM Advocate 2015 JC 180 (LJC (Carloway) at para [56]; see also Sim v HM Advocate 2016 SCCR 303), it was emphasised that it remained primarily for the parties to address the jury on what parts of the evidence were, or were not, significant and to make such submissions on credibility and reliability as they thought appropriate.  The distance over which the judge should traverse the arena of fact was very much a matter for his judgment, based upon his unique understanding of the true issues of fact in contention during the trial. 

[18]      There is a tension between a judge’s obligation to provide the jury with such guidance and assistance as can properly be given in relation to the accurate assessment of the quality of, and weight to be given to, certain types of evidence (Practice Note 18 February 1977) and the desirability of the judge not straying too far into the jury’s territory of determining any issues of credibility and reliability.  Although in certain cases a judge may require to touch upon the evidence to demonstrate where a sufficiency might be found as a matter of law, it will rarely be necessary for him to delve into passages which affect only credibility and reliability, where these have already been explored by the parties.

[19]      The existence of any obligation on the judge to direct the jury on prior statements will depend on the facts and circumstances of the case.  The fact that there has been reference to a prior statement at some point during the trial does not mean that a direction is inevitably necessary.  However, it is likely that a direction will require to be given where the witness has “adopted” a statement as part of his evidence and that part is material to proof of the charge (ie Niblock v HM Advocate 2010 SCCR 337 LJC (Gill) at para [14].  The judge would require to direct the jury on how such adoption operates, in the context of section 260 of the Criminal Procedure (Scotland) Act 1995, as a matter of law.  Otherwise, the jury may consider that it is only what the witness remembered and spoke to in court which mattered.  In Niblock v HM Advocate (supra), the Lord Justice Clerk (Gill) stated (para [16]) that the need to give a direction applied generally where it had been legitimate to refer to a witness’s prior statement.  That comment was made in the context of the evidential import of the statement being a necessary element for proof of the charge.

[20]      Where a prior statement is relied upon solely for the purposes of the assessment of credibility and reliability in terms of section 263(4) of the 1995 Act, a judge may wish to provide the jury with assistance on that matter and in some situations such a direction may be required.  However, it is important to assess precisely what the nature of the legal direction ought to be.  It is correctly set out by Lord Hardie, delivering the Opinion of the Court, in Haggerty v HM Advocate [2009] HCJAC 31 (at para [6]) as being to direct the jury on the limited purpose for which they may use such prior statements.  Put another way, it is not to tell the jury that they can use a prior inconsistent statement when assessing credibility and reliability. Such use is obvious and very often already clear from the speeches to the jury.  It is to tell the jury that they cannot use such statements, unless they are adopted, as proof of fact (see also DS v HM Advocate 2012 SCCR 319, Lord Bonomy at para [8]).  In that sense, the direction, if given, will often be one which favours the Crown rather than the defence. 

[21]      In so far as it might be thought that the dictum of Lord Malcolm, delivering the Opinion of the Court, in Lumsden v HM Advocate 2015 JC 133 (at para [5]) might be interpreted as requiring a direction in every case, it is important to note that he recognised expressly that every case depends upon its own facts and circumstances.  Lumsden was also special in so far as the prior statement amounted to a total denial that the offending had taken place.  The present case is quite different.

[22]      In this case, the advocate depute and counsel for the appellant had addressed the significance of the inconsistencies in their speeches.  The trial judge had directed the jury that they should have regard to what each had said in their speeches and explained that he had not gone into the evidence as this had already been done.  Although the judge could have told the jury that they could use any discrepancies to test credibility and reliability, this may have been seen as unduly condescending and an attempt to provide the jury with a glimpse of the obvious.  If a legal direction were required at all, it would have been one in favour of the Crown by stating that the content of the statements, in so far as not accepted as truth, could not be used as proof of fact but only to test credibility and reliability.  The absence of this direction could only operate in the appellant’s favour in that, if the jury erroneously treated the complainer’s prior statements as capable of proving fact, that would have supported the lines of defence.  In any event, no miscarriage of justice can be seen to have occurred where the issue of credibility and reliability in the case of the complainer was firmly before, and resolved by, the jury as an essential element of their verdict.  The appeal against conviction must be refused.

Sentence
[23]      The appellant was aged 30 at the time of the offence.  He had a previous conviction for rape in 2009, for which he received a 9 year extended sentence with a custodial element of 6 years.  He had an earlier conviction for assault and robbery in 2004, which attracted a 5 year sentence.  After his release from the 2009 sentence, he had been convicted of assaults on three different occasions.  Post-conviction, he had assaulted a fellow prison inmate (a notorious murderer) to his severe injury and permanent disfigurement.  On 22 October 2005, he had been sentenced to 32 months in custody for that offence.  He had also been formally recalled to prison under section 17 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in respect of the prior sentence for rape.

[24]      The trial judge explains that, had he imposed a determinate sentence, it would have been one of 17½ years.  He regarded the offence as at the top end of those of its type given the degree of pre and post incident planning.  He deducted 20%, as representing the protection of the public element, which left 14 years.  He would normally have simply halved that amount to reach the appropriate punishment part.  However, there was the added “complication of the s 17 order”, which was due to expire in December 2019.  He adjusted the “normal reduction down from 7 years to 5”, thus arriving at the punishment part of 9 years.  However, he explains in his report that he also took into account the post-conviction sentence of 32 months since, to do otherwise, would have nullified its effect.

[25]      The appellant accepted that the criteria for an Order for Lifelong Restriction were met and that an OLR was an appropriate sentence.  The contention was that a 9 year punishment part was excessive; based, as it was, on an excessive starting point of 17½ years  (Foye v HM Advocate 2011 SCCR 636).

[26]      The judge had taken into account an irrelevant factor.  He had made the deduction of 20% from the headline sentence, but had then added on 2 years to the resultant 7 years, produced by halving the determinate sentence, to take into account a period of custody of 32 months.  Section 101A(2)(a) of the 1995 Act permitted the court to have regard to any conviction in respect of an offence occurring before the principal conviction.  The judge had departed from the procedures in section 2(2)(aa) and (b) of the 1993 Act.

[27]      The court agrees that the period of 17½ years is excessive, notwithstanding the nature of the offence and the appellant’s previous convictions.  The court will take, as its starting point, 15 years.  From this, it will deduct 3 years, consistent with the trial judge’s assessment of 20%.  It will set the punishment part at half of the remaining amount; that is to say 6 years.  Such an approach is consistent with the legislation, which provides that the punishment part is to be the amount appropriate to satisfy the requirements for retribution and deterrence (ignoring the period necessary for the protection of the public) taking into account the seriousness of the offence, or of the offence combined with other offences on the same indictment and any previous convictions (1993 Act s 2(2)(aa) and (b)).  The judge’s adjustment to take into account the subsequent conviction is not authorised by the Act.