APPEAL AGAINST CONVICTION BY VB AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 101
HCA/2014/004601/XC
Lady Paton
Lady Smith
Lord Malcolm
OPINION OF THE COURT
delivered by LADY PATON
in
APPEAL AGAINST CONVICTION
by
VB
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Paterson (sol adv); Paterson Bell
Respondent: Prentice QC (sol adv), AD; Crown Agent
22 November 2016
[1] After trial in Aberdeen High Court, the appellant was convicted on 12 September 2014 by majority of the following offences:
“(01) On various occasions between 30 January 2003 and 30 November 2010 … at a caravan park in Scotland … [and at two addresses in Scotland], you … did assault EB … born 8 December 1995, and did hold her hands above her head, remove her lower clothing, force her legs apart, lock her in a bathroom, seize her by the arms, touch her vagina, insert your penis into her vagina, and you did rape her;
(03) On various occasions between 8 December 2007 and 30 November 2010 … at [said addresses in Scotland] … you … did use lewd, indecent and libidinous practices and behaviour towards EB … a girl then of or over the age of 12 years and under the age of 16 years, and did touch her vagina and insert your fingers into her vagina: CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, section 6;
(04) On various occasions between 1 December 2010 and 1 June 2011 … at [an address in Scotland] … you … did assault EB … and did remove her lower clothing, force her legs apart, hold her hands above her head, induce her to touch your penis, touch her on the vagina, insert your fingers into her vagina and penetrate her vagina with your penis and you did rape her: CONTRARY to sections 1, 2 and 3 of the Sexual Offences (Scotland) Act 2009;
(06) On 18 April 2010 at [an address in Scotland] you … did assault RB … and did touch her vagina, breasts and bottom and attempt to insert your penis into her vagina and did attempt to rape her;
(07) On various occasions between 8 August 2012 and 13 August 2012 … at [an address in Scotland] … you … did sexually assault LT ... born 15 May 1996, and did repeatedly strike her on the bottom, pin her down, sit on her, tickle her and handle her breasts over the top of her clothing: CONTRARY to section 3 of the Sexual Offences (Scotland) Act 2009;
and
(08) On 15 August 2012 at [an address in Scotland] … you did sexually assault LT … and did touch her breasts, seize her by the hips, seize her by the hand and touch her vagina over her clothing, attempt to induce her to expose her breasts: CONTRARY to section 3 of the Sexual Offences (Scotland) Act 2009.”
[2] On charges 1 and 4, a cumulo extended sentence of 11 years was imposed (9 years in custody and 2 years supervision). On charge 3, 2 years imprisonment (concurrent); charge 6, 2 years imprisonment (concurrent); charges 7 and 8, a cumulo sentence of 12 months imprisonment (concurrent). All sentences were backdated to 12 September 2014.
[3] The appellant appeals against conviction.
Grounds of Appeal: Alleged Misdirection by Omission
[4] The appellant contends that the trial judge misdirected the jury by omission, in that he failed to give a specific direction that hearsay evidence could not be used as proof of crucial facts, and could not be used for the purpose of corroborating a complainer’s evidence.
Relevant Passages of Evidence
[5] Several passages of evidence were referred to.
Evidence of EB
[6] 2 September 2014: pages 128‑133: In evidence in chief, EB (aged 18 at the trial) spoke about thinking that “something dodgy” was going on between the appellant and her cousin LT (aged 18 at the trial), having seen LT sitting on a kitchen counter, and the appellant standing between her legs, hugging her (charge 8). When EB came into the room, the appellant was gesturing towards his belt area, either unbuttoning it or buttoning it up. About 10 minutes later, the appellant left to go to bed. At that point, LT started to cry. She was “pretty upset and distressed”. EB’s sister KB came in. EB explained what she had seen. They questioned LT, who said that the appellant had tried to take her hand and put it on his penis; he had shoved his penis in her face. The advocate depute asked EB: “So, just to be clear, you didn’t see any of that, but that’s what she told you?” EB confirmed that was the case.
Evidence of RB
[7] 3 September 2014: pages 165‑170: In evidence in chief, RB (aged 41 at the trial) stated that her daughter KB phoned at about 2am on 15 August 2012. Something had happened involving LT and the appellant (charge 8). RB advised her to phone the police. RB also spoke to LT, who was crying and distressed. The police were then involved. Meantime RB learned something about her daughter EB. RB confirmed that when she gave the police a statement on 16 and 17 August 2012, she told them what the appellant (her husband) had done to her. She did so because she realised that other people might be at risk. In relation to any discussion amongst family members, she said:
“Well, we haven’t gone into the details of necessarily what … [the appellant’s] done but they know he’s done something bad to myself and EB and LT”
She explained that originally LT told her, and EB “said a few bits”. She understood in general terms what EB said had happened to her. RB had previously thought that something had happened to EB, as:
“She used to wet herself all the time and mess her underwear and they used to be hidden around the house, and they, I would find underwear in the toilet system when the toilet wouldn’t flush. She turned into a tomboy. She binge ate. There was something not quite right, and I took her to the doctor’s because of her wetting herself and hiding the pants …”
But the fact that the perpetrator could have been the appellant came as a complete shock.
Evidence of LT
[8] 4 September 2014: pages 134‑138: In evidence in chief, LT said that EB confided in her about difficulties she was having with the appellant. The difficulties were of a sexual nature. The confidences were made during a holiday in about 2011 at LT’s mum’s house in England. EB decided to remain in England, and not to go back to Scotland. After EB had told her about this, LT and EB went back to EB’s former home in Scotland on about two occasions. LT confirmed meeting the appellant on those occasions, and stated that after what EB had told her, she hated him.
[9] 5 September 2014: pages 103‑104, 108‑110: In re-examination, the following exchange took place between the advocate depute and LT:
Page 104
AD: Can I ask, EB had told you that she’d been abused by VB, is that right? – Yes.
AD: But she didn’t discuss any detail with you? – No.
AD: And she didn’t tell you precisely what she says he did? – No.
AD: And when she told you at first, did you know whether or not to believe her? – Yeah. EB wouldn’t lie.
AD: I mean, I’m just asking your opinion. – Yeah. I believed her.
Page 108 et seq
AD: You didn’t think KB believed you, and in order to convince her …? – Not convince her, but to just say, well look … I’m not being funny, but he has done it, and he has been doing it for quite some while, like, touching people that don’t want to be touched, and it …
AD: And that was EB you were talking about? – Yeah.
AD: Did, when you gave that information to KB, did that appear to change her view or her mind about what was happening? – I think she was just in shock, and she just broke down because so many things seemed to add up when, if she thought about it.
AD: Well, I’m not asking you to give evidence … - Yeah.
AD: … for KB. She can give evidence for herself. All I’m saying, you’ve been telling us in evidence that she didn’t appear to believe you or that you thought she might not be believing you. – Yes.
AD: You then told her about EB. I’m just wondering, did she appear to change her view about whether or not to believe you? – I think so, but I, she wasn’t, she didn’t really make that clear because she wasn’t really …
AD: Right. So she didn’t say anything? – No, and she, obviously, her attention was more focused on EB than me, obviously.
Evidence of KB
[10] 7 September 2014: The relevant evidence given by KB is summarised at page 11 of the judge’s report as follows:
“KB … said that LT had been okay initially … but when KB had asked her what was going on, LT had burst into tears. Initially she said that the appellant had acted inappropriately towards her and had done something that she did not like. Subsequently she said that the appellant had grabbed her wrist in the kitchen, had touched himself in front of her and had then exposed himself to her in the kitchen and had grabbed her breasts. KB added that when she spoke of himself exposing himself, LT had used the word ‘flashing’ …”
Evidence of JF
[11] 9 September 2014: pages 14‑21, 33‑34: In evidence in chief, JF (aged 48 at the trial), stated that he had had a sexual relationship with RB, initially in 2009 when she was still living with the appellant, and subsequently, following her separation from the appellant in October 2009, when JF and RB lived together for periods in late 2010‑2011. The appellant, after separating from RB, continued to visit his children at RB’s home. When JF was asked if he was made aware of “any particular incidents that gave rise to any difficulties with [the appellant] being in [RB’s home]”, he gave evidence relating to two incidents: (i) in early 2010, the appellant had visited for RB’s birthday. Because of travel difficulties, he stayed overnight. The next day, JF visited RB. She told him “what had transpired the night before … she … advised me that he had been quite sexually persistent with her.” When JF met her, “she was very upset … [He] knew by looking at her when [he] came into the house that she looked distraught and tired, and she was obviously upset.”
AD: And did she tell you why she was upset? – Yes.
AD: What did she tell you? – Ehm, she said that she had been raped the previous night by her husband.
AD: Did she say any more than that, or …? Ehm, she’d explained that she had been taking sleeping tablets. The whole separation break-up had been stressful and obviously she had a number of children and that itself is quite stressful. She’d had difficulty sleeping and she had taken some sleeping tablets that night in order to, to help with her sleep, ehm, and that [the appellant] had come into her room and that he had raped her.
AD: Are you quite clear that she used the word “raped”? – Yes.
AD: Okay. Did she say anything about refusing or telling him to stop or, was that mentioned at all? She told me that she had awoken being aware of, of his presence in the room. Ehm, I would say the sleeping tablets had made her, you know, had kept her asleep until, she hadn’t been disturbed until she had realised that he was in the act of, I think, undressing her.
[There followed questions and answers about reporting the matter to the police.]
AD: … But did she [report the matter to the police]? – No.
[There followed questions and answers concerning the non-reporting, ending with the witness saying that] … her main concern was certainly for her children and how, how they would be affected by, by that coming to light.
At the end of evidence in chief, the following exchange took place:
AD: To put it another way, how sure are you about what you’ve told us about the two incidents? How sure are you that you’ve got it all right? – If you’re asking me am I sure from the discussions that I had with RB, then seeing how she was, how she felt, am I sure that she was raped, then I have no doubt she was.
Evidence of FM
[12] 9 September 2014: Another witness, FM (aged 44 at the trial), a social worker, gave the following evidence at pages 54‑56, 63, and 65:
AD: Now, were you made aware of any difficulties that RB had with VB? – Ehm, I can’t remember the exact date. I think it was probably October, October, November time when, when she said that, ehm, she believed that she’d been raped by VB.
AD: She disclosed that to you? – Yes, she did.
[The witness was then referred to her case notes.]
AD: So you told us earlier in your evidence it was October, November, and in the course of this RB says that she had been raped more than once, is that right? – That’s what she told me, yes.
AD: It was multiple. It wasn’t one single incident. Is that right? – Yes.
AD: And you’re quite clear that she used the word “rape”, is that right? – Yes …
AD: … on 17th November you had a telephone call with RB herself in which she indicated that VB had raped her on more than one occasion, is that correct? – Yes …
AD: Can you tell us anything at all, or could you tell anything at all from the telephone call about RB’s demeanour? How was she? – She was extremely distressed. Ehm, she was talking very quietly, ehm, and in a low voice. Ehm, she was talking quite rapidly … on this occasion she was really clear about what happened although she was in a state of distress.
AD: Now, was there any discussion between you and RB at that time about whether or not the matter should be formally reported to the police? – Yes. Ehm, I regret not putting that in the notes. Ehm, I did say to her, have you thought about going to the police and that was when she was saying, no, I couldn’t possibly do that because I don’t want to get VB into trouble …
AD: Now, as a result of the nature of that allegation, were there any concerns in the Social Work Department about the children staying with VB …? [The witness responded, describing a discussion with her manager, and an eventual conclusion that VB would not do anything to the children, it was “just about him and her”] …
AD: … about half way down that part of the entry …there’s a bit that says, “I asked her how safe she felt EB was staying there, given the information RB had given me re the rape allegation. RB said she felt confident that EB was safe”. Is that right? – Yes.
The Judge’s Charge
[13] The trial judge (Temporary Judge S F Murphy QC) gave inter alia the following directions.
[14] At pages 3‑4, the judge directed the jury on corroboration:
“ … The Crown must also establish its case on corroborated evidence. That means evidence from more than one source. Our law lays down that no-one can be convicted on the evidence of a single witness alone, no matter how credible or reliable that witness may appear to be. There must always be some cross check, which is what lawyers call corroboration. That means there must be evidence which you can accept as credible and reliable, coming from two separate sources to indicate guilt. Now, that might be evidence from two or more eyewitnesses, or it might be eyewitness testimony supported by circumstantial evidence pointing towards the guilt of an accused, or any combination of these. But the important point is there must be two independent sources of evidence which you accept pointing towards guilt.
The essential facts of each charge are what must be proved by corroborated evidence. What that really means is that the prosecution must establish, on the basis of separate sources of evidence, two things: that the crime set out in any charge has actually been committed in the first place; and secondly that the accused was the person responsible …”
[15] At pages 6‑10, the judge gave directions about the jury’s task in assessing the credibility and reliability of witnesses, including a direction at page 8:
“You might like to consider whether a witness has said something different on some other occasion. For example … when speaking to someone else about these matters before coming to court … has he or she been consistent throughout when they were talking about these incidents? …”
[16] At pages 13‑14, the judge directed the jury that:
“It is essential, ladies and gentlemen, that you reach your verdict on the basis of the evidence you’ve heard here in court, and on any reasonable inferences or deductions that you can draw from it. You should not be swayed by anything else. You must not speculate or seek to guess in any way about what might have happened.”
[17] At pages 51‑56, the judge gave directions on the Moorov doctrine, including the following passages:
“(page 51) In relation to each charge on this indictment, you could only convict the accused if you accept the evidence of the complainer with regard to that charge, and that is the starting point of the Crown case in each instance, and that element applies to every charge on the indictment …
(page 55) Obviously you can only seek to apply this doctrine to any charge where you believe the account of the complainer. If you do accept the testimony of any of the complainers here to any of the charges, you would be able to find mutual corroboration between the account of that credible complainer and the account of another complainer, were you to find her to be credible and reliable in relation to another charge if you consider that they were speaking to a sufficiently similar type of allegations.
You would then have to decide if, by reason of the character, circumstances and time of each charge, the crimes were so closely linked that you could infer that the accused was pursuing a single course of criminal conduct …”
[18] At pages 63‑64, directions were given concerning what RB had told JF and FM, as follows:
“ … If you agree with Mr Duguid [senior counsel for the appellant] that there are discrepancies between what RB said to you in evidence and the statements which she made to JF and FM, you may take that into account in deciding whether you should accept RB as a credible and reliable witness, and to what extent.
In the course of his evidence, JF expressed the view that he had no doubt that RB had been raped … Ladies and gentlemen, the opinion of a witness as to whether something has happened when he was not present at the time, is of no consequence … [h]is personal view of RB’s veracity is of no consequence for you … The only people who may decide if RB was raped or not, and the only people who have to decide if her account was truthful or not, are you, because only you have heard all of the evidence. Indeed Mr Duguid has pointed out certain discrepancies between what JF said that RB had told him, and what she told you in her evidence here in court about these same incidents …”.
Submissions for the Appellant
[19] Mr Paterson for the appellant submitted that the Crown had led evidence of disclosures by a complainer to other witnesses. Leading such evidence was not necessarily objectionable (in fact the evidence had not been objected to, and parts had been used to highlight discrepancies). But if the Crown led such hearsay evidence, the trial judge had to make clear to the jury what use they could put the evidence to.
[20] It was acceptable to lead EB’s evidence about what LT said just after the incident in charge 8 (paragraph [6] above). What she said was part of the res gestae or alternatively a de recenti statement. But the judge had to direct the jury how they could use that evidence.
[21] Part of the difficulty in the present case was that the judge had said nothing about hearsay evidence, but had then chosen to comment on a particular aspect of the evidence, for example, telling the jury in effect that they could not use JF’s evidence as corroboration of RB’s evidence (the judge’s charge pages 63‑64, quoted in paragraph [18] above).
[22] The judge had given standard directions about corroboration (pages 3‑4), about reaching a verdict only on the evidence led in court (page 13 line 20), and about the Moorov doctrine. These directions could not be criticised. But the judge had not given the jury a clear direction that evidence from, say, EB, about what LT told her, could not provide corroboration for what LT was alleging. As a result, it was possible that the jury might have regarded that sort of evidence as “evidence led in court”, from which a reasonable inference could be drawn, resulting in the conclusion that it was “evidence from a separate source” (and thus corroborating LT’s evidence). That erroneous approach would have been avoided by a simple direction.
[23] Standing the judge’s directions about (i) credibility and reliability, (ii) the need for corroboration, and (iii) the Moorov doctrine, Mr Paterson accepted that the jury must have believed all three complainers. But he submitted that that did not make the appeal redundant. There was the possibility that the jury had found the hearsay evidence so significant that they might have relied on that evidence in order to convict the appellant (cf dicta in paragraphs 4 and 5 of Lumsden v HM Advocate 2011 SCCR 648). Some parts of the evidence criticised were neither part of the res gestae nor de recenti statements. They accordingly required an appropriate direction.
[24] In a case of this sort, hearsay evidence relating to conduct on the part of the appellant might be particularly significant (cf Clark v HM Advocate [2016] HCJAC 11; Diba v HM Advocate [2015] HCJAC 123). Thus the defence were entitled to expect a direction about hearsay, especially if the advocate depute had arguably gone too far in eliciting that type of evidence. For example, the advocate depute had arguably asked inappropriate questions on 5 September 2014 page 104 (paragraph [9] above) in order to elicit evidence which could not be categorised as establishing distress, or as clarifying a timeline, or as demonstrating a disclosure. It was secondary evidence, and a direction was required.
[25] It was submitted that, as a consequence of the misdirection by omission, there had been a miscarriage of justice.
Submissions for the Crown
[26] The evidence which was said to have resulted in the misdirection had not been objected to at the time it was led. As the appellant had been legally represented, section 118(8) of the Criminal Procedure (Scotland) Act 1995 was relevant. However it was accepted that the grounds of appeal were not framed on the basis of inadmissibility. So the question at issue was whether the alleged omission had resulted in a miscarriage of justice. It was not sufficient that the charge might have been “improved” or made “better”.
[27] The judge clearly directed the jury that they could “only convict the accused if [they accepted] the evidence of the complainer with regard to that charge” (page 51 of the charge). In the case of the complainer EB, the defence contention was that all her allegations were “completely made… up” (see, for example, 3 September 2014 re‑examination page 45). The hearsay evidence complained of was vague and did not provide any details supportive of EB’s testimony: thus for the essentials of each charge, the jury had to look to EB’s evidence. They had obviously accepted her testimony, as they had RB’s and LT’s.
[28] The Crown had not relied upon the vague and inspecific conversations referred to, but had relied upon each complainer’s evidence and the application of the Moorov doctrine. On that basis there had been no miscarriage of justice. The appeal should be refused.
Discussion
[29] In this case there were three complainers, each speaking to actions and events not witnessed by others. The Crown case was therefore dependent upon the Moorov doctrine for corroboration.
[30] At the beginning of his charge, the judge gave the jury clear directions on the need for corroboration. He explained (pages 3‑4):
“ … The Crown must also establish its case on corroborated evidence. That means evidence from more than one source. Our law lays down that no-one can be convicted on the evidence of a single witness alone, no matter how credible or reliable that witness may appear to be. There must always be some cross check, which is what lawyers call corroboration. That means there must be evidence which you can accept as credible and reliable, coming from two separate sources to indicate guilt. Now, that might be evidence from two or more eyewitnesses, or it might be eyewitness testimony supported by circumstantial evidence pointing towards the guilt of an accused, or any combination of these. But the important point is there must be two independent sources of evidence which you accept pointing towards guilt.
The essential facts of each charge are what must be proved by corroborated evidence. What that really means is that the prosecution must establish, on the basis of separate sources of evidence, two things: that the crime set out in any charge has actually been committed in the first place; and secondly that the accused was the person responsible …”
[31] Thus the jury knew that corroboration required “two separate sources” for the essential facts of each charge, namely that the crime was committed, and that the accused committed it.
[32] In the particular circumstances of this case, it was clear to the jury that the Crown could not and did not rely upon two eyewitnesses to establish the essential facts: as already noted, the crucial actions and events described by each complainer took place when no other witness saw what happened. It was also clear to the jury, from the evidence led and from the advocate depute’s speech, that the Crown did not rely upon one eyewitness supported by circumstantial evidence: what the Crown relied upon was the individual evidence from each complainer and the application of the Moorov doctrine.
[33] The judge gave clear directions on the Moorov doctrine. Those directions have not been criticised.
[34] In particular the trial judge began those directions with the words (page 51):
“In relation to each charge on this indictment, you could only convict the accused if you accept the evidence of the complainer with regard to that charge, and that is the starting point of the Crown case in each instance, and that element applies to every charge on the indictment.
If you do accept the account of the complainers in this case, ladies and gentlemen, the Crown requires to corroborate it. Where is such support to be found? … it’s what is called the doctrine of mutual, or concept of mutual corroboration. Lawyers call it the Moorov doctrine …” [The trial judge then gave full and accurate directions about the doctrine and how the jury could, if they so chose, apply it, and thus find a complainer’s evidence to be corroborated.]
[35] The judge ended his directions on the Moorov doctrine with the words:
“Obviously you can only seek to apply this doctrine to any charge where you believe the account of the complainer.”
[36] Standing these clear directions, there was no scope for the jury to contemplate finding corroboration in some other way. The jury must be assumed to have followed the judge’s directions. Prima facie therefore the jury’s verdict demonstrated that (i) as their starting‑point, they considered each individual complainer’s evidence; (ii) they found EB, RB, and LT to be credible and reliable witnesses; (iii) they found a pattern of similar acts which were so connected in time, character and circumstances as to justify an inference that they were instances of a single course of similar conduct systematically pursued by the appellant; (iv) they duly convicted on the basis of the primary evidence of EB, RB, and LT.
[37] If at any stage in their reasoning (for example, at stage (i), when assessing a complainer’s credibility and reliability) the jury took into account the evidence contained in the passages noted in paragraphs [6] to [12] above, the jury were fully entitled to do so. That was precisely the sort of evidence which was properly available to the jury when seeking to assess a complainer’s credibility and reliability, as indeed the judge had directed them at page 8 of his charge:
“You might like to consider whether a witness has said something different on some other occasion. For example, when giving a statement to the police before coming to court, or when speaking to someone else about these matters before coming to court … has he or she been consistent throughout when they were talking about these incidents?”
In this context, it is noteworthy that the experienced senior counsel acting for the appellant at the trial chose not to object to certain evidence being elicited (although arguably some of that evidence was not part of the res gestae, or demonstrating distress, or clarifying a timeline, or amounting to a late disclosure), and then sought to use the discrepancies which emerged to the appellant’s advantage.
[38] We are fortified in our conclusion that it was made clear to the jury that there was no scope for finding corroboration in the passages criticised in this appeal by the following example. In the indictment as it went to the jury, charge 8 was in the following terms:
“(08) On 15 August 2012 at [PH] … you did sexually assault LT … and did touch her breasts, seize her by the hips, seize her by the hand and touch her vagina over her clothing, attempt to induce her to expose her breasts and expose your penis to her: CONTRARY to section 3 of the Sexual Offences (Scotland) Act 2009.” [emphasis added]
However in contrast to witnesses EB and KB (paragraphs [6] and [10] above), the complainer LT gave evidence which did not not include seeing the appellant’s penis (4 September 2014, pages 144, 183). The jury convicted the appellant of charge 8 under deletion of the words “and expose your penis to her”. In so doing, they demonstrated that they focused upon LT’s evidence, assessed her credibility and reliability, assessed other complainers’ credibility and reliability, and decided that it was appropriate to apply the Moorov doctrine.
[39] We accept that, in many cases, it may be essential for a trial judge to give a specific direction of the type sought by Mr Paterson. We also accept that it would not have been inappropriate in the present case for the trial judge to have given such a direction. However on the evidence led, and in view of all the other clear directions given by the judge in his charge, we do not consider that the direction said to have been omitted was in fact necessary in this particular case. Standing the evidence, and the clear directions concerning inter alia credibility and reliability, corroboration, and the Moorov doctrine, it is our opinion that the jury would have been under no misapprehension concerning what evidence could or could not be used as proof of crucial facts, or for the purpose of corroborating a complainer’s evidence.
[40] We are not therefore persuaded that the trial judge erred by way of a misdirection by omission. It follows that we are not persuaded that any miscarriage of justice occurred.
Decision
[41] For the reasons given above, the appeal is refused.