APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Nimmo Smith Lady Paton Lord Mackay of Drumadoon	[2009] HCJAC 74 Appeal No: XC681/07 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in NOTE OF APPEAL AGAINST CONVICTION by G. A. S. Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

19 February 2009

Appellant: Shead; George Mathers & Co

Respondent: Stewart AD; Crown Agent

Introduction

[1] The appellant was convicted at Elgin Sheriff Court on 23 July 2007 of two charges in the following terms:-

"(001) Between 1 June 2004 and 22 July 2005 both dates inclusive at ...... you [G. A. S.] did use lewd, indecent and libidinous practices and behaviour towards [AB], care of Grampian Police, Moray Street, Elgin, a girl then of or over the age of 12 years and under the age of 16 years, and did use your hand to strike her on her buttocks over her clothing, did watch in the presence of said [AB] a video containing pornographic images; induce her to expose her breasts, did induce her to lift up her clothing to expose her bra, repeatedly request that she take indecent photographs of herself, repeatedly request that she take video footage of herself engaged in sexual acts with [CD], care of Grampian Police, Moray Street, Elgin, repeatedly touch her on her breasts over her clothing, touch her on her private parts over her clothing, touch her on her naked breasts, induce her to kiss the said [CD], and repeatedly make indecent suggestions to her; CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 6

(002) Between 1 June 2004 and 22 July 2005, both dates inclusive at ...... you [G. A. S.] did use lewd, indecent and libidinous practices and behaviour towards [CD], care of Grampian Police, Moray Street, Elgin a girl then of or over the age of 12 years and under the age of 16 years, and did pull down her trousers to expose her buttocks, did seize hold of her clothing on the upper part of her body and pull up said clothing to expose her naked breasts, did repeatedly watch in the presence of said [CD] a video containing pornographic images; repeatedly request that she take indecent photographs of herself, request that she take video footage of her[self] engaged in sexual acts with [AB], care of Grampian Police, Moray Street, Elgin, repeatedly touch her on her private parts over her clothing, and repeatedly make indecent suggestions to her; CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 6".

The appellant was subsequently sentenced to 3 years' imprisonment in respect of those convictions.

Ground of appeal

[2] The appellant appealed against his conviction on those two charges on a number of grounds. At the conclusion of the hearing of his appeal against conviction on 19 February 2009 the Court announced that the appeal was allowed on one of those grounds and that the Court's reasons for doing so would be issued in writing in due course. In these circumstances this Opinion is confined to the ground of appeal on which the appeal was allowed. That ground of appeal was set out in the Note of Appeal in the following terms:-

"With regard to the learned Sheriff's directions in relation to statements made by the accused (page 23, line 11 to page 24, line 20) the Sheriff directs the Jury that the statements were exculpatory and (page 24, lines 13-15) that it is not evidence of the truth of what he said. However at page 24, lines 1-7 it appears that the accused admitted certain things but (page 24, lines 7-9) 'He coupled that with a denial of any wrongdoing of any nature at all'. This tends to suggest that it was not a wholly self serving statement but a mixed statement in which event the Jury of course are entitled to consider the truth of what was said (there is further reference to what the accused said at page 27, lines 14-16 which the Sheriff told the Jury: 'It's of no significance' (page 27, lines 18 and 19))."

[3] The first passage of the sheriff's charge to which that ground of appeal refers runs as follows:-

"The next direction which I have to give you is in relation to the statements and responses made by the accused himself when he was interviewed by the police, because these were exculpatory statements. And depending on what view you take of it, these responses could point to the accused's innocence.

Where, as here, the accused himself hasn't given evidence this, the, the evidence of the responses to the police are evidence only to show that they were made. And to show the accused's attitude or reaction at the time that he was being interviewed as part of the general picture which you've to consider. Because the accused, well he admitted that he lived at the, the address and that, that [CD] had come to live at that address of the family for, for certain reasons, and was living in family there. And that [AB] was a friend who frequently visited her. He coupled that with a denial of any wrongdoing of any nature at all.

So as I say his responses at that time, when he was confronted by the police and interviewed, his responses go to part of making up the general picture. But it's not of course in itself evidence of the truth of what he said. And of course statements which weren't exposed to challenge or cross-examination by the Crown. Because he elected, as he's perfectly entitled to do, I stress, not to give evidence himself. "

The second passage is in the following terms:-

"The accused's position is simply that, he goes so far only as to say that he gave the girls cigarettes. But that in itself is, is, I'm not quite sure what, what it [inaudible] I guess, but it, it's of no, it's trivial. It's of no significance. It's not, it's not of the essence of the, of either of the charges here."

[4] In his report to this Court on this particular ground of appeal the sheriff states:-

"The responses made by the Appellant, not in evidence but in the course of interview by the Police, in so far as they were admissions, were merely of undisputed facts, that [CD] was his niece and was living at his family home at the material time, and that [AB] was her friend and visited her there frequently. These responses, which were clearly not incriminatory to any extent whatsoever and related merely to facts and circumstances which were never in dispute, were 'coupled with a denial of any wrongdoing of any nature at all'. It was and is my respectful view that there was no 'mixed statement', that what the Appellant did say (to the Police) was wholly exculpatory. In respect that the Appellant did not give evidence, the direction that the Police evidence of these responses went merely to show the Appellant's reaction of the general picture but were not evidence of the truth of what he said, was correct, according to my understanding. The comment (at p.27, lines 18-19 of the transcription '... it's trivial. It's of no significance') related to the reference which I had made (at lines 14-16) to the Appellant's having given cigarettes to the girls [AB] and [CD] and was to emphasise that, undesirable although this may have been, it was not in any way indicative of the Appellant's possible guilt of the charges which he faced".

Submissions

[5] This ground of appeal primarily relates to what was said by the appellant when he was interviewed under caution on 27 July 2005 by two Crown witnesses, Detective Constable Michael McKenzie and Detective Sergeant Mark McLaughlin. When counsel for the appellant began his submissions in relation to this ground of appeal copies of those transcripts were not before us. Counsel sought to put his submission shortly. He argued that because the contents of the interview had been introduced into evidence by the Crown that made the interview a mixed statement about which the jury should have been directed in appropriate terms. The sheriff's failure to give the appropriate directions had given rise to a miscarriage of justice. Reference was made to McCutcheon v HM Advocate 2002 SCCR 101, Lennox v HM Advocate 2002 SCCR 954, and Sneddon v HMA 2006 SCCR 40.

[6] During the course of counsel's submissions, the Court drew attention to the fact that a copy of the transcript of the interview was not available to the members of the Court. The Court was advised by counsel for the appellant that it was his understanding that the transcript had been before the jury. The Advocate depute, for his part, confirmed that the Crown was content that this appeal should be dealt with on that basis. Counsel indicated that he had a copy of the transcript and in due course it was made available to the Court. The Court adjourned to read the transcript. The interview had in fact been transcribed in two separate documents, Crown Production 5, which covered the period between 1240 and 1520 hours, and Crown Production 7, which covered the period between 1525 hours and 1603 hours.

[7] In reporting to the Court on this ground of appeal the sheriff indicates that the responses made by the appellant during the course of the interview were, insofar as they amounted to admissions, merely admissions of undisputed facts, namely that CD, one of the complainers, was his niece, that she lived at his family home at the material time and that the other complainer AB was her friend and visited there frequently. He took the view that such responses were clearly not incriminatory to any extent and related merely to facts and circumstances which had never been in dispute.

[8] As soon as the transcript was made available to the Court it became clear that there were other parts of its contents of an incriminatory nature. In particular during the course of the interview the appellant indicated that on a number of occasions he had engaged in discussions with both complainers, and in particular with his niece CD, during which it had been suggested to him that if he gave the girls cigarettes they would engage in sexual favours and in particular take photographs of themselves in compromising positions. The appellant also spoke of CD having said to him that if he "grounded" her for the rest of the holidays she would make up a story that he had abused them. During the course of the interview the appellant also admitted having a collection of pornographic videos, including some involving bestiality in which females were shown as being engaged in sexual activity with animals.

Discussions

[9] We are in no doubt whatsoever that, leaving aside the fact that it had been the Crown which had introduced the interview into the evidence, the interview included passages that were of an incriminatory nature as far as the two charges the appellant faced were concerned. That was particularly so as far as the passages relating to the discussions between the complainers and the appellant. Whilst the appellant put a different slant on the conversations than had presumably been spoken to by the complainers when they gave their evidence, the fact of the matter is that the subject matter of those conversations, namely that each complainer would take indecent photographs of herself and video footage of herself engaged in sexual acts with the other complainer, reflected the terms of the charges. Likewise the fact that the appellant admitted during the interview that he possessed a collection of pornographic videos was a piece of evidence upon which the jury would have been entitled to rely in convicting the appellant in relation to both of the charges he faced.

[10] In view of the fact that this statement was clearly a mixed statement, the sheriff failed to give the appropriate directions. He should have given directions in terms of the guidance set out in the standard authorities, in particular McCutcheon v HM Advocate supra, and McGirr v HM Advocate 2007 SCCR 80. In our opinion the sheriff's failure to give those directions amounted to a misdirection of some significance. As the sheriff mentions in his report, the appellant did not give evidence at his trial. That was one factor which we took into account in reaching the conclusion that the sheriff's misdirection gave rise to a miscarriage of justice. In such circumstances the appellant's conviction on the two charges required to be quashed.