Wallace & Anor v HM Advocate [2017] ScotHC HCJAC

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 40

HCA/2016/480/XC and HCA/2016/482/XC

Lord Justice General

Lady Paton

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

NOTES OF APPEAL AGAINST CONVICTION

by

(FIRST) JAMES WALLACE and (SECOND) LOUISE McGHEE

Appellants

against

HER MAJESTY’S ADVOCATE

Respondent

First Appellant: CM Mitchell; Faculty Criminal Appeals Unit (for Logans, Cumnock)

Second Appellant: Mackintosh; Faculty Criminal Appeals Unit (for McLennan Adam Davis, Ayr)

Respondent: Niven Smith AD; the Crown Agent

31 May 2017

Introduction

[1] On 19 August 2016, at the sheriff court in Ayr, the appellants were convicted of three charges which libelled that:

“(1) on 25 January 2016 at … Cumnock, you… did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did demand money, shout, swear and damage household items;

CONTRARY to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010;

(2) on 25 January 2016 at …Cumnock, you … while acting together, did assault [GC], residing there, and did, having entered the house uninvited, punch him repeatedly on the head and body and strike him on the head with a metal pole all to his injury;

(4) on 25 January 2016 at …Cumnock, you …while acting together did, having entered the house uninvited, assault [KS], residing there, and did repeatedly strike her on the head and body with a metal pole to her injury”.

On the same date, the first appellant was sentenced to 12 months imprisonment in respect of charge 1 and 34 months on charges 2 and 4 (reduced from 42 months in light of a period spent on remand), to run concurrently. The second appellant was sentenced to 12 months on charge 1 and 42 months on charges 2 and 4, to run concurrently.

[2] There are two issues raised in the Notes of Appeal. They are whether the sheriff misdirected the jury: first, as to the requirement for corroboration; and secondly, by failing to give a specific direction on the use of a police statement.

Evidence
[3] GC gave evidence that he had been assaulted by the appellants. He stated that the appellants had struck him on the head with “something”, “a golf handle, a golf club handle, or a golf club…I don’t quite know what it was”. In the course of cross-examination, he repeated that description. A police statement, which had been taken shortly after the incident, was put to him. The complainer accepted that he had told the police what was recorded in the statement and that, other than in relation to one matter, what he had said was true. He did not accept that a reference in his police statement, that he had been struck by an “iron bar”, was accurate. He initially denied telling the police that he had been struck by an iron bar because, he reasoned, “if it was an iron bar I’d have been in intensive care, not just have a few lacerations over my head.” Later in cross-examination, the complainer accepted that he may have said that he had been hit by an iron bar, but that “they hit me with something” and “it could have been conceived an iron bar” (sic). In their respective speeches to the jury, the appellants’ agents drew the jury’s attention to this supposed discrepancy and suggested that it impacted adversely on GC’s credibility.

[4] Both complainers identified the appellants as committing the section 38 offence (charge 1) and assaulting the complainer, GC (charge 2). In respect of charge 4, only the complainer KS gave evidence about the assault upon her. The Crown sought to rely on the application of mutual corroboration for a sufficiency on that charge.

Charge to the jury
[5] The sheriff began his charge with some general or standard directions. On credibility and reliability, he directed the jury that “Quite often witnesses give differing accounts of the same event”. He may have meant to say that different witnesses gave such accounts, but that is not what he said. He continued that “if the accounts, on crucial matters, are substantially similar, then minor differences of detail do not matter”. He may have meant “may not matter”. If there were differences on important matters, he directed the jury that it was for them to decide which version to accept. He did not mention the possibility of rejecting all versions. He continued by directing the jury on what he described as four general rules of law; the fourth being the requirement for corroboration. He said that nobody could be convicted on the word of one witness alone, no matter how credible or reliable he or she might be. The law required a cross-check, which lawyers called corroboration. The sheriff immediately directed the jury that there was an exception to the general requirement for corroboration in the application of what the procurator fiscal depute had called the Moorov doctrine. He directed the jury on how they could apply Moorov to charge 4, where there was only one eye-witness; that is to say the complainer. He repeated that normally two sources of evidence were required, but that, where Moorov applied, there could be a sufficiency of evidence when a crime was spoken to by only one credible and reliable witness. Where the crimes were closely linked in character, circumstances, place and time, the evidence of one witness, about the commission of one crime, could be corroborated by the evidence of another witness, about the commission of the other crime. He provided the jury with the ubiquitous bribed goalkeeper analogy before telling them that they would have to accept the evidence of both complainers on each assault charge before they could convict on charge 4. He contrasted questions of sufficiency of evidence, in respect that charge, with that on charge 2, where two sources were present.

Submissions
First appellant
[6] The first appellant submitted that the sheriff had erred in two respects. First, he had failed to give the jury a full direction on corroboration; notably that the Crown required to prove by corroborated evidence that the offence had occurred and that it had been committed by the accused. The directions given on Moorov did not specify that, for the doctrine to be operative, the witnesses required to corroborate both the identity of the perpetrator and the commission of the crime. The jury ought to have been directed that these two crucial facts both required to be corroborated. The direction ought to have been given expressly, rather than having to be implied from the charge as a whole (Wilson v HM Advocate 2003 SCCR 133 at para [6]; Sweet v HM Advocate, HCJAC, unreported, 6 June 2002 (No 197/01)). The absence of a suitable direction may have left the jury with an inadequate legal framework within which to assess the evidence. The absence of the missing elements meant that the appellant and the public could not understand the reasons for the verdicts (see Judge v United Kingdom 2011 SCCR 241 at paras [35]-36])

[7] The sheriff had, secondly, erred in failing to give a direction on the use to which the jury could make of the prior statement of the complainer, GC, which was inconsistent with his testimony. The defence had relied on the discrepancy as a tool for undermining the witness’s credibility. In these circumstances, a direction was appropriate (O’Neil v HM Advocate 2017 SLT 74, para [16]). The failure to direct the jury that the prior statement could be used to test credibility, taken together with the direction that minor inconsistencies did not matter, amounted to a misdirection.

Second appellant
[8] The second appellant adopted the submissions of the first appellant. In addition, there was reference to the specific content of the Jury Manual and what ought to be stated in a direction on corroboration. Such a direction was particularly important given the complexity of the directions generally; covering difficult concepts, including mutual corroboration, concert and inconsistent statements. Whether the sheriff required to give a direction on inconsistencies, was, it was accepted, something which depended on the facts (Moynihan v HM Advocate 2016 SCCR 548). Such a direction had been required because this had not been the only difficulty with the complainers’ evidence. There had also been allegations of collusion, involving a discussion of the evidence by the two complainers. Taken separately and together, the misdirections amounted to a miscarriage of justice.

Crown
[9] Under reference to Sim v HM Advocate 2016 JC 174 (at para [32]), the advocate depute responded that a judge’s directions had to be looked at in the context of the oral tradition in which they were given. Words should not be scrutinised in isolation. A charge was not to be analysed as if the jury had not heard the evidence and the speeches. It was primarily for the parties to address the jury on what parts of the evidence were or were not significant. This had been a short 2 day trial, in which the evidence had come from the two complainers and the first appellant, who had spoken to an alibi. In these circumstances, it would not have been a useful exercise to pick out the discrepancies in the evidence. The totality of the charge had to be seen against that background.

[10] No miscarriage of justice could be seen to have occurred as a consequence of any errors in the directions. The sheriff had said that, in order to convict on charge 4, the jury required to accept each complainer on each of the assault charges. Since the jury had convicted, it had to be assumed that they had accepted both complainers on the essential matters and had rejected the alibi spoken to by the first appellant. In relation to inconsistencies, these had been a clear focus of cross-examination and speeches. In terms of Moynihan, there was no requirement to give a specific direction, since that would simply have been affording the jury a glimpse of the obvious.

Decision
[11] The sheriff regrets that he did not, as he would normally have done, expand upon his general directions on corroboration to the effect that evidence was required from one credible and reliable source and had to be supported by another separate source. It would undoubtedly have been preferable if he had done so by following the Jury Manual’s recommendations. Nevertheless, he explained to the jury how the principle of mutual corroboration applied. Having done so in the manner described, the essentials of corroboration must have been apparent to the jury. His direction that, for a conviction on charge 4, the jury required to accept both complainers as credible and reliable in respect of each of the assault charges meant that the jury must have accepted the complainers’ accounts and rejected the testimony of the first appellant. In these circumstances, a conviction on all three charges would have been bound to follow. No miscarriage of justice has, in these circumstances, been shown to have occurred.

[12] The sheriff, perhaps inadvertently, had given the jury directions on conflicting accounts given by a witness. The supposed conflict between the complainer’s description of the weapon as an iron bar, or an object with a different metallurgical composition, does not appear to be one of much importance. It hardly required to be subject of a direction to the jury. As was emphasised in Moynihan v HM Advocate 2016 SCCR 548 (LJG (Carloway) at paras [17-20]), it is primarily the function of parties to address the jury on credibility and reliability (see also O’Neill v HM Advocate 2017 SLT 740). The judge should take care not to trespass too far into the jury’s arena in this regard. Whether to give the jury a direction on the significance of a prior inconsistent statement will depend upon the facts and circumstances, but the purpose of doing so is not normally to tell the jury that the inconsistency can be used to assess credibility or reliability since that is obvious, and will have been made so in the speeches. It is to explain the limited purpose to which such statements can be used in relation to proof of guilt. In these circumstances, no miscarriage of justice can be seen to arise from this ground either.

[13] These appeals are accordingly refused.