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NOTE OF APPEAL AGAINST CONVICTION BT JSC AGAINST HER MAJESTY'S ADVOCATE [2021] ScotHC HCJAC_49 (25 November 2021)
URL: http://www.bailii.org/scot/cases/ScotHC/2021/2021_HCJAC_49.html
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[2021] HCJAC 49,
[2021] ScotHC HCJAC_49,
2022 GWD 4-63
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2021] HCJAC 49
HCA/2021/83/XC
Lord Justice General
Lord Pentland
Lord Matthews
OPINION OF THE COURT
delivered by LORD MATTHEWS
in
NOTE OF APPEAL AGAINST CONVICTION
by
JSC
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: Shand; Paterson Bell (for Murray Ormiston, Aberdeen)
Respondent: Prentice QC (sol adv) AD; the Crown Agent
25 November 2021
Introduction
[1]
On 5 February 2021 the appellant was convicted by a majority of charges in the
following terms:-
"(1)
On various occasions between 20 December 1997 and 31 December 2000, both
dates inclusive at (an address) you JSC did use lewd, indecent and libidinous practices
and behaviour towards H, born 3 January 1989... and did touch her on the chest and
vagina over her clothing with your hand;
2
(3)
on various occasions between 12 April 2001 and 22 June 2004, both dates
inclusive at (the same address) you JSC did use lewd, indecent and libidinous practices
and behaviour towards L, born 23 July 1993 ... and did press your penis against his
buttocks, pull him towards you, place his hand on your penis, cause him to masturbate
you, masturbate him, cause him to penetrate your mouth with his penis, penetrate his
mouth with your penis and penetrate his anus with your penis, to his injury".
[2]
The following charge was found not proven:-
"(2)
On various occasions between 20 December 1997 and 31 December 2000, both
dates inclusive at (a different address and the same address and elsewhere) you JSC
did assault H born 3 January 1989 and did pull down her lower clothing and did
penetrate her vagina with your penis and you did rape her."
[3]
The following docket was attached to the indictment:-
"On various occasions between 5 January 1993 and 4 January 1997, both dates
inclusive (at yet another address and the address in charge 1) JSC did touch H, born 3
January 1989, on the chest and vagina over her clothing with his hand and did rub his
body on the body of said H over her clothing."
The docket narrates that the incidents were said to have occurred when the appellant was
aged between 8 and 12 years old.
[4]
Having adjourned the diet for the preparation of a report, the trial judge sentenced the
appellant to 42 months imprisonment. There is no appeal against sentence.
[5]
It is not necessary to go into detail about the evidence which was led. The complainers
H and L are brother and sister and they are related to the appellant, as are all of the witnesses
and potential witnesses referred to in this Opinion. They are all known to each other and
lived at the material time in reasonably close proximity. The Crown case relied on mutual
corroboration using the evidence of H and L. They gave evidence in support of the libel.
During the course of the evidence of H she volunteered that a relative called C had been
abused by the appellant and that C had been present while H herself had been raped. She had
also claimed that C was a prostitute.
3
[6]
The complainers' mother X also gave evidence. Amongst other things, she spoke of
certain disclosures by the complainers. She said that she was a volunteer. That was explored
in cross-examination and it transpired that she approached people who might have been
abused and helped them to make financial claims, assisting them with the paperwork.
[7]
The appellant gave evidence in which he denied committing the offences. There was
also evidence from the appellant's cousin D, the brother of C. He denied that C was a
prostitute and gave hearsay evidence that she denied having been raped by t he appellant.
[8]
During the course of her evidence H also volunteered that two other relatives of the
appellant, CC and MC, had been abused by the appellant.
The grounds of appeal
[9]
There are essentially four grounds of appeal which have passed the sift, grounds 2, 3, 4
and 5. Ground 2 alleges a failure by the Crown to disclose information which is said to be
relevant. Ground 3 is that no reasonable jury could have found charges 1 and 3 established.
Ground 4 alleges a misdirection by the trial judge in relation to the averment that the
appellant penetrated the complainer's anus with his penis and ground 5 is that no reasonable
jury could have found that aspect of charge 3 to have been corroborated. It is not suggested
that there was insufficient evidence to convict.
Submissions for the appellant
[10]
The Case and Argument and the oral submissions which followed thereon were wide-
ranging and not always easy to follow. However, they can be fairly summarised as follows.
4
Ground 2
[11]
The appellant submits that the Crown failed to disclose information from C which had
the potential to undermine the evidence of H. C was spoken to by the police and gave them
certain information but not a written statement. According to an affidavit of C, dated
12 November 2021, police officers approached her in March or April 2020 and asked her if
anything had happened with the appellant. She said that he had never sexually abused her.
The officers did not mention H. They asked her if she would make a statement and she said
she would but there was no point as nothing ever happened. She indicated that the
complainers and her mother all had mental problems. According to the appellant's Case and
Argument she said something like "you know my Auntie X she's deluded and she needs
psychiatric help, they all need psychiatric help." This was all disclosable and would have
undermined the complainer's evidence, since it contradicted what the complainer had said
about C. Those now representing the appellant (who were not the same solicitors or counsel
who represented him at trial) did not know exactly what information the original defence
team had been given. It appeared that the advocate depute had been told that C had nothing
to report and did not wish to provide a statement. It is assumed that this information was
passed to the original defence team.
[12]
If full disclosure had been made C could have been precognosced and could have
revealed other information about H, namely that H makes up false stories; there were never
family gatherings when H would have been alone in the company of the appellant for long
enough for sexual abuse to have taken place; and that there was an occasion several years ago
when H and X encouraged C to make a complaint that the appellant had sexually abused her.
They told her that if she went ahead with such an accusation she could come into money.
5
[13]
CC and MC were seen by the police, who asked them whether they wished to report
any abuse by the appellant and they stated that they did not. According to MC's affidavit,
dated 12 November 2021, she told the police that she had not been abused by the appellant.
Again she gave no written statement. In the Case and Argument, it is speculated that H
and/or X had asserted to the police that the appellant was guilty of abusing MC or CC but
there is no basis for this speculation.
[14]
As with C, MC also gave information about X having previously sought to persuade
her to make false allegations of sexual abuse against the appellant.
[15]
CC, in her affidavit dated 11 November 2021, said that she was approached by the
police in the summer of 2018 and they asked her if the appellant had ever been inappropriate
towards her. She confirmed that he had not. She was not asked to make a statement.
According to her affidavit, the complainers and their mother had suggested that she had been
abused by the appellant but this was only something she had heard. She said that X had told
people in the past that if they said they had been sexually abused they could get money. She
recalled being told a story involving X and H and her cousin C. She had also been told that X
had tried to do this to another individual L. On one occasion in 2014 or 2015 X had sat her
and her sister MC down in the house and kept suggesting that they had been abused.
[16]
The appellant's uncle D had given a statement to the police on 29 January 2021. In the
course of that he said that X had a history of accusing people wrongly of sexually abusing her
and that she had been mentally unstable since childhood. She coerced other women to say
they had been sexually abused when they had not, in pursuit of a cut of their compensation.
He "believed" that she was doing the same with H. He had shared a room with the appellant
for about a year when the appellant was 12 or 13 during the period of the libel of charges 1
and 2 and never saw him behave in a sexual manner.
6
[17]
D also said that 7 or 8 years ago H had falsely accused him of sexually abusing her and
he reported it to the police, who took a statement from him. He never heard anything more
about it. The affidavit contained his opinion about H and her mother and mentioned things he
had heard "through the grapevine".
[18]
Had D's statement been disclosed it might well have revealed admissible evidence
concerning concerted efforts by X to encourage others to make false complaints of sexual
abuse for compensation. Along with the information given by C, MC and CC this could all
have led to evidence of a pattern of behaviour by, presumably, H and X, which would
corroborate the assertion by the appellant that the allegations against him were false. Just as
the Crown can rely on Moorov, there is, or should be, scope for the defence to rely on a
"defence Moorov". Unsurprisingly, no authority was cited in support of this proposition.
7
Ground 3
[19]
No complaint was made about the evidence of L but no reasonable jury could have
accepted the evidence of H. The inconsistency between the verdicts on charges 1 and 2
strongly supported this ground. The trial judge in his report was critical of H's evidence. She
was said to be one of the most difficult witnesses he had encountered. It was very difficult to
control her and to get her to answer questions. Answers became long rambles verging on
diatribe. She would go off at tangents and on occasions he had to remind her to answer the
question which she had been asked. Her evidence and behaviour at times bordered on
"bizarre". She referred to the appellant when he was a young boy as "a little Hitler". On one
occasion she started pulling up her skirt in the witness box. She volunteered that she had lied
on many occasions in court in the past and that she had numerous convictions for shoplifting.
We have already referred to her volunteering information about C, MC and CC.
[20]
It was said by counsel that H was disconnected from reality. There were concrete
examples in the case where her evidence could not have been right. She asserted that she had
been abused when separated from others by a door but the evidence was clear that the door
was made of glass. She gave evidence of being abused in the presence of pictures of MC and
CC but according to her account the abuse happened before they were born. While the
evidence of witnesses did not require to be looked at in a silo, complainers had to come up to
some sort of reasonable baseline of acceptability. Her evidence on charge 1 was inextricably
linked with her evidence on charge 2 and there was no reasonable explanation why the jury
should have convicted of one and acquitted on the other.
8
Grounds 4 and 5
[21]
While charge 3 did not in terms allege sodomy, there being no reference to "unnatural
carnal connection", it was not necessary to specify a nomen iuris. While sodomy had been
abolished by the Sexual Offences (Scotland) Act 2009 it remained a crime if committed before
that Act came into force. The reality was that, although the charge was dressed up as one of
lewd, indecent and libidinous practices and behaviour it contained an allegation of sodomy
and corroboration of penetration was required. The trial judge had not directed the jury that
that was the case.
[22]
It was not known if the jury had relied on the evidence in the docket in support of
charge 3. Corroboration of penetration had to be found in evidence of something approaching
penetration, for example, a thwarted attempt at such. Reference was made to paragraph 22 of
involving oral penetration. Vaginal and anal penetration were in a different category. The
docket could have provided corroboration but the judge should have told the jury that that
was one of the available routes.
Submissions for the Crown
Ground 2
[23]
This was a straightforward case involving two complainers who corroborated each
other. It was correct to say that the police spoke with C to obtain a statement and she said she
had nothing to report. She said that she had not been abused by the appellant but declined to
provide a statement. The Crown had no statement from her. There had been a discussion
between the trial advocate depute and defence counsel, who was aware that she did not
support H. In fact, counsel put that to H in cross-examination. She was not a complainer and
9
was not a Crown witness. The distinction between her having nothing to report and her
saying that the appellant did not abuse her was a fine one and of no moment. The defence
had not been deprived of anything material. It was not clear whether or not defence counsel
had been told any more than that she had nothing to report but that was of no significance. In
any event the appellant was in a position to know that he had not abused C and could not
ignore lines of inquiry which were of significance for his defence. Cameron v HM Advocate
2008 SCCR 748. Having been told that she had nothing to report, the defence could have
made further enquiry or called her as a witness if they had thought it appropriate. It was put
to H in cross that C did not support her allegations at all and evidence was led from the
defence witness D that C had not been raped by the appellant, although this was hearsay.
That showed that the defence were aware of C's position. Repeated reference was made by
defence counsel in her speech to the fact that C had not given evidence for the Crown. As it
happens, the charge potentially involving C, namely charge 2, was found not proven.
Whether or not she had in fact been raped or abused was a collateral matter. The Crown was
not aware of any evidence C might have been able to give in relation to the mental state of
witnesses. It was opinion evidence in any event and was inadmissible. It was up to the
defence what they did in relation to C. See McDonald v HM Advocate 2010 SC (PC) 1 at
paragraph 60.
[24]
MC and CC were not complainers and were not Crown witnesses. They had been
referred to in a statement of a witness TN, which had been disclosed. The appellant had
mentioned them to her. We assume that they are the persons referred to in that statement as
his nieces. Against that background the police had approached MC an d CC for a statement.
They also advised they had nothing to report, had not been abused and refused to give a
statement. This was irrelevant to the charges on the indictment and did not fall into any of the
10
categories of section 121(3) of the Criminal Justice and Licensing (Scotland) Act 2010. The
defence were aware of their limited connection to the case an d could have pursued that line if
they had chosen so to do. Insofar as the appellant suggested that the information became
disclosable as a result of H's volunteering that they had been abused, that still remained
irrelevant to the matters before the court. It was a crime not charged in each case and it was
up to the defence what they wished to do about it. Once again the appellant would have
known that he had not abused these witnesses. He knew who they were and attempts could
have been made to precognosce them and call them. Such information as they might have
been able to give about attempts by X to claim that they had been abused was collateral and
inadmissible.
[25]
The same was true of most of what D had to say. Much of that was hearsay in any
event. There was nothing of relevance in it which was not otherwise disclosed or known to
the defence. There was no information to suggest that any abuse had occurred in his presence
so what he had to say about that would have had little import. Insofar as he denigrated the
character of X and H, the defence knew all about that. The fact that X had made
compensation claims for others was explored in her evidence. This was all collateral in any
event. There was no such thing as a Crown Moorov or a defence Moorov. There was just
evidence.
No reasonable jury
[26]
This was a very high test. See Geddes v HM Advocate 2015 JC 299. It would only
succeed in exceptional circumstances. Naveed Iqbal v HM Advocate [2018] HCJAC 65. The
verdict had to be perverse or unreasonable. Al Megrahi v HM Advocate 2002 JC 99; Webb v
HM Advocate 1927 JC 92. While the court should give considerable weight to the trial judge's
11
view (Dreghorn v HM Advocate 2015 SCCR 349), that did not mean that this ground should
succeed. The issues with the evidence had to be of a high level of difficulty. See AJE v
HM Advocate 2002 JC 215. It was accepted that there were a number of difficulties with the
evidence of H but while one view of it could be that she was a complete liar, a manipulative
individual, and one who had no respect for the jury or anyone in court, the other explanation
could be that she had had a broken and unhappy family life. The abuse had left her damaged
and she was now telling the jury as best she could what had happened to her. There were
discrepancies in her evidence but she was trying to remember events from a long time ago.
She was bitter and angry, which suggested hatred of the appellant. Where did that come from
if she was not telling the truth? All this was before the jury, who had been presented with two
possible views to take of her evidence. As it happened, the verdict was discerning and
careful. The jury had acquitted on charge 2 and that might well have been related to the fact
that no evidence had been given by C about it, despite what H had said. They must have
accepted some of the evidence given by H and L and they were presumed to have followed
the judge's directions. In Dreghorn there was a reason to distinguish between charges as there
was here. The fact that L was a good witness might have had a bearing on what the jury
made of H's evidence overall. See PGT v HM Advocate 2020 JC 205.
Grounds 4 and 5
[27]
The judge had correctly directed the jury as to mutual corroboration. Whether there
were sufficient similarities was a question of fact and degree for the jury. Both charges 1 and 3
as well as the docket involved sexual abuse of children by an older child continuing into his
early adulthood and involving touching of their genitals. The abuse in charge 1 ended about
the time the abuse in charge 3 began. The complainers were of similar ages when the
12
offending began and it took place generally in the appellant's home. He would take
advantage of the opportunity afforded by their being forced to visit regularly or to stay in his
house. His conduct was persistent and repeated and he acted in a domineering way with both
complainers. The evidence of the appellant lying on top of H when she was smaller and
grinding his penis up and down against her per the docket, was similar to some of the sexual
acts spoken to by L as it involved a simulation of penetrative intercourse. In any event, the
suggestion that anal penetration could not be corroborated by anything other than rape was
not supported by the authorities. See for example MR v HM Advocate 2013 JC 212, AD v HM
[28]
The then Lord Advocate in 2011 had directed that the term "unnatural carnal
connection" should not be included in indictments. Such charges should be libelled as sexual
assault, although in this case it was libelled as lewd, indecent and libidinous practices and
behaviour. The anal penetration in this case was presented as part of a charge of lewd and
libidinous conduct. No particular rules applied to that part of it being corroborated as
opposed to the rest of the charge. The jury clearly accepted that it was corroborated as they
left this element in the charge. It might have been of some advantage for the judge to have
said a little more about penetration but the absence of such a direction did not give rise to a
miscarriage of justice
13
Analysis and decision
Ground 2
[29]
Sections 121 to 123 of the Criminal Justice and Licensing (Scotland) Act 2010 provide
for a continuing duty of the Crown to disclose to the accused information of which they are
aware which
(a)
would materially weaken or undermine the evidence that is likely to be led by
the prosecutor in the proceedings against the accused,
(b)
would materially strengthen the accused's case,
(c)
would be likely to form part of the evidence to be led by the prosecutor in the
proceedings against the accused, and
(d)
was not required to be disclosed under any of the preceding categories but
which might be relevant to the case for or against the accused.
[30]
The appellant's position relies principally on an alleged breach of section 122 of the
Act, which relates to the last of the above categories. It is said that the information gathered
which was not disclosed was relevant. We shall examine each of the pieces of information in
turn.
[31]
As far as C is concerned, at the very least it is clear that the appellant's representatives
at trial were told that she did not support the evidence of H. That evidence was that C had
herself been raped by the appellant and was present on a least one occasion when H was
raped by him. The most that can be said for the appellant is that his representatives were not
told in terms that she denied having been abused by him and that she had made disparaging
remarks about the sanity of the complainer and her family. It is quite clear that the appellant's
counsel at trial knew perfectly well that C did not support the complainer and there is no
14
material difference between what she must have been told in that regard and what the
appellant now alleges she was not told. Had they been told in terms that she denied being
abused by the appellant and that she denied ever seeing H being abused by him, while this
could have been put to the complainer, as opposed to its merely being put that she did not
support her, this of itself would not have been evidence. It could only have become evidence
if C gave evidence to that effect and there was sufficient material disclosed to the defence to
enable them to decide whether or not to precognosce C and thereafter call her as a witness.
Inasmuch as she expressed an opinion about the mental faculties of the complainer and her
family, that would not have been admissible evidence. The extent to which it might have led
on to further enquiry is completely speculative. In any event, given that the appellant was
acquitted of the charge in respect of which H volunteered that she was present, it is
impossible to find that a miscarriage of justice has resulted.
[32]
MC and CC were not witnesses and there was no suggestion in the indictment that
they had been abused by the appellant. The information which had been blurted out by H
was not admissible evidence and an exploration of it would have been collateral. Once the
material was volunteered, it would have been open to the defence to take steps to precognosce
the potential witnesses, presumably on the basis of instructions from the appellant that he did
not in fact abuse them. Once again, even if there was a failure to disclose such material as the
Crown had in this regard, but which, as it happens, did not include any statements from the
witnesses, it cannot be said to have given rise to a miscarriage of justice. The defence cannot
just sit back and wait for the Crown to do their work for them.
[33]
Much of the material in D's affidavit is hearsay. None of it is relevant. Even if X has a
history of accusing people of sexual abuse, falsely or otherwise, that cannot assist in
15
determining whether the appellant abused H or L. D's account of X being mentally unstable
is of no relevance.
[34]
D's claim that H accused wrongly accused him of sexually abusing her and the claims
made by MC about X trying to persuade her that she had been abused by the appellant are
irrelevant. CC's affidavit contains more irrelevant material, such as hearing a story about X
and H trying to persuade C that she had been abused by the appellant.
[35]
In short there is nothing in the information which C, D, MC or CC provided which was
relevant other than the fact that C did not support H, who had said that she was present when
she was raped.
[36]
D's allegation that H falsely accused him of rape was, as was conceded by the
appellant's counsel, not something which was instantly verifiable. As with the rest of the
material which the appellant now relies on, it is plainly collateral, as any superficial perusal of
all the recent authorities would show.
[37]
This ground is without merit.
Ground 3 no reasonable jury
[38]
We recognise at once that H was a difficult witness. The trial judge has described her
presentation. She was difficult to control and prone to going off at tangent s. She would not
answer questions. There were certain aspects of her evidence which seemed to fly in the face
of the facts such as evidence about abuse happening on the other side of a glass door and the
impossibility of pictures of as yet unborn children being on the wall when she was being
abused.
[39]
However, we have considered the transcript of her evidence very carefully. Despite
the obvious problems with her presentation when she gave her evidence, there appears in the
16
transcript a reasonably coherent picture of abuse which the jury were entitled to accept. This
is particularly so given the clear evidence of L, who also provided a consistent picture of
abuse with many similarities. As was noted in PGT v HM Advocate, the evidence of individual
witnesses should not be looked at in a silo. Even were that not the case, we are not satisfied
that the appellant has met the applicable high test.
[40]
As was said in Geddes v HM Advocate 2015 JC 299 at paragraph 4: "It is only in the
`most exceptional circumstances that an appeal on this ground will succeed'". At paragraph 5
the following was said:
"The argument will accordingly often boil down to one which seeks to persuade the
court that the jury could not reasonably have accepted the testimony of a particular
witness or witnesses, or part of it, as credible and reliable. Since that is traditionally
and primarily the province of the jury to assess ... it will only be in rare cases that the
court will be persuaded that no reasonable jury, properly directed, could have
accepted the testimony in question."
[41]
There is no test of exceptionality as such but, as a matter of fact, occasions when a
ground like this will succeed will be few and far between. This is not one of them. The jury
plainly applied their minds to the evidence and returned discerning verdicts. There is nothing
inconsistent between the conviction on charge 1 and the acquittal on charge 2 given the
references by H to C having witnessed her having been raped. C not having given evidence in
support of that, it is unsurprising that the jury acquitted on charge 2. Once again there is no
merit in this ground.
Grounds 4 and 5
[42]
We shall deal with these grounds together. Charge 3 was a charge of lewd, indecent
and libidinous practices and behaviour which contained within it an averment of anal
penetration. That averment could have been prosecuted as a charge with a different
formulation. The fact remains that it was not. The trial judge directed the jury that the
17
complainer's evidence required to be corroborated. He did not break the libel down into
different elements which each required corroboration. It was not necessary, at least in this
case, that he did so. The jury were fully aware that the evidence had to be corroborated and it
must be assumed that they followed the judge's directions in that regard. If the judge had
told them that the anal penetration aspect of it required to be corroborated as opposed to
telling them about any other part of it, it might have led to confusion. As it is, no miscarriage
of justice has resulted.
[43]
Lastly, it is said that no reasonable jury could have found the averment of anal
penetration corroborated. It is not said that there was insufficient evidence. There was
enough evidence, not only in the evidence of H but also in the evidence relating to the docket.
While it is now said that the trial judge should have referred specifically to the docket, that
criticism does not feature in the Note of Appeal. It proceeds on the basis that, having
acquitted the appellant on charge 2, no reasonable jury could have found the circumstances in
charge 1 sufficient to corroborate the anal penetration. That bald statement and the
submissions in support of it fly in the face of the consistent line of authority which it would be
otiose to outline yet again. For present purposes it is sufficient to refer to paragraph 21 of
Jamal v HM Advocate where the Lord Justice General (Carloway) under reference to a number
of well-known authorities said the following:
"There is no principle whereby what might be perceived as less serious criminal
conduct, such as a non-penetrative offence, cannot provide corroboration of what is
libelled as an apparently more serious crime involving penetration."
and
"The fundamental issue is whether the evidence demonstrates a course of conduct
systematically pursued."
18
[44]
In this case the trial judge gave full and accurate directions on the principle of mutual
corroboration. There was sufficient evidence to support L in both the evidence about charge 1
and in the docket evidence. The jury were perfectly entitled to accept that evidence and to
proceed as they did. Once again this ground has no merit.
[45]
It is asserted that ground 2 also gives rise to a compatibility issue in that the Crown's
alleged failure to disclose the desiderated material gives rise to a breach of article 6(1), 6(3)(b)
and 6(3)(d) of the European Convention on Human Rights and Fundamental Freedoms.
There was no separate argument in support of the assertion and it does not in any event give
rise to any considerations which are not adequately dealt with by an application of domestic
law.
[46]
It follows from all the foregoing that the appeal is refused.
