[2016] HCJAC 86


Lord Justice Clerk

Lord Menzies

Lady Clark of Calton











Appellant:  Moggach, Faculty Services Limited (for Gavin Bain & Co, Aberdeen)

Respondent:  A Edwards, QC, AD; Crown Agent

7 October 2016

[1]        This appeal relates to a conviction on a charge of assault with intent to rape.  The appellant had also been found guilty of simple assault, and being concerned in the supply of cannabis.  He had pled guilty to a statutory breach of the peace.  The grounds of appeal are (i) that the sheriff erred in failing to direct the jury in relation to an inconsistent prior statement by the complainer to the police, which had been the basis for a significant part of the cross-examination, and referred to in the defence speech; and (ii) that in directing the jury in relation to distress, the sheriff had erred in failing to advise them that the distress required to be spontaneous, genuine and arising directly from the conduct complained of.

[2]        The evidence of the complainer was that she had been in the company of her boyfriend and the appellant in the course of the evening, latterly at her own flat; they had all been drinking, and her boyfriend had vomited over the carpet;  she argued with him, and asked him to leave, meaning leave the room, not the flat;  he however misunderstood and left the flat, but remained outside causing a commotion;  the complainer’s mother arrived and entered the flat;  the appellant seemed annoyed at the boyfriend, wanting to go outside and speak to him;  the complainer stopped him from doing so;  the appellant assaulted her by putting his hands to her face and squeezing her cheeks together and pushing her head back;  he then slapped her on the face with some force;  at that point the complainer’s mother left;  although there had been no discussion to this effect, the complainer thought her mother would contact the police;  thereafter the events narrated in the charge occurred;  the appellant admitted most of these, stating that he had been “chancing his arm” with the complainer.  She had been looking out of the window at her mother leaving.  The appellant was on the same sofa.  When asked if she wanted the events to happen she said “no”.  She repeatedly told the appellant that she was with her boyfriend, and “This wasn’t happening between me and him”.  The complainer gave evidence that when her mother first arrived the appellant had made inappropriate remarks about her mother, and put his arm around her.  The complainer told him to get off her mother.  She also stated that the appellant was a stranger to her and that she had first met him that day.

[3]        Certain aspects of the police statement put to the complainer in cross-examination were consistent with her evidence in chief.  However:

  • She said she didn’t know her boyfriend was outside the flat prior to her mother arriving, had not heard him banging or shouting to get in, yet her statement referred to his presence at that time.
  • In her statement she said she had prevented the appellant from leaving the house, that he had kissed her, and that this preceded an altercation between the appellant and the complainer’s mother.  In her evidence she said that what she had said in the statement was untrue, and in fact that when the appellant had been heading towards the door, seemingly to try to get at her boyfriend who was on the other side of it, he squeezed the complainer’s face really hard and pressed her head backwards.  His hand was on her mouth and his thumb and fingers on either side of her face.  He then slapped her with a “forceful enough” blow.  No mention of the slap had been made in the statement.
  • She accepted that she had given the police an untrue account of the circumstances in which her mother had been asked to leave the flat.  In evidence she mentioned the advances made to her mother, and said that her mother left after the complainer had been assaulted by the appellant, realising that the police should be called but that the complainer could not do it.  In her statement she said that she heard her mother say “let go of me” but “I can’ remember what he was doing to her”.  In her statement she said the reason her mother left was that she had taken exception to the presence of a syringe, and that the complainer had forced her mother to leave.
  • She agreed she told the police she had gone to the window to check that both her mother and her boyfriend had left, but this was not true.
  • Although she told the police that the appellant had managed completely to remove her trousers and pants, her evidence in court was that these items had not been completely removed from her legs.
  • A similar issue arose in relation to the appellant’s clothing, her statement indicating that he stood and removed his trousers and pants, her evidence suggesting that they were not completely removed.
  • She was challenged about that part of the statement in which she said that she had encountered the appellant a number of times in passing, and said “hi”.  The sheriff did not recall any specific question being put, but it may be presumed that this evidence was raised to challenge her assertion in court that the appellant was a complete stranger to her whom she had met for the first time that night.

[4]        In her report the sheriff states [para 18]:

“With regard to the statement as a whole, the witness stated in evidence that there were parts which were correctly recorded but incorrect as to the facts.  She explained why she had not told the truth, and in my view, the few points which she accepted as incorrect were either more or less irrelevant or not entirely inconsistent with her position in the witness box.”


From this it appears that a deliberate decision was taken not to direct the jury on the issue.

[5]        The sheriff gave conventional directions to the jury that evidence is what is said from the witness box, that the content of questions is not evidence, nor are suggestions made to a witness unless the witness agreed with them.  She added:

“If something is put to a witness who can’t remember, or who doesn’t know, then that’s not evidence, and what’s said in speeches is not evidence.”


[6]        The sheriff made no mention of the statements which had been put to the complainer in this case, the effect of them, or the way in which the jury might use the evidence relating to them.  When the jury returned to ask if they could see the statement, the sheriff said:

“The answer to the question is quite short, and it is “no”.  I remind you of what I said to you about a witness’s evidence is what is said in the witness box.”


[7]        The sheriff gave the jury relatively standard directions about corroboration, without explaining the extent to which distress might be used as corroboration.  The extent to which distress might be available as corroboration was not covered.  The sheriff later referred to distress in the context of explaining that to determine whether the appellant’s alleged belief in consent was reasonable the jury had to look at the whole circumstances of the case.  She went on to say:

“One aspect of the evidence that I do have to warn you about, ladies and gentlemen, it’s available to you and it’s relevant, but you have to be very careful about what you make of it, is any question of distress exhibited by [the complainer].  First of all you’ll have to decide whether she was or not.  That’s a question of assessing the evidence and what you decide comes from the evidence.  Distress is available to you to corroborate a certain amount of other evidence, the fact that something has happened which caused her distress, but it does not go in any way to the nature of what happened.  The fact of distress cannot corroborate, for instance, sexual element or lack of consent, that sort of thing.  You have to be very careful what you do with evidence or distress.”


[8]        The sheriff’s report suggests that the directions given were adequate in the context of the trial, where the appellant had “admitted the physical aspects of the charge (with the exception of digital penetration which the jury deleted)”.  The sheriff does not explain why this should have prevented a fuller explanation of the role which distress may play in a trial, particularly in a case in which the Crown were relying on the distress as corroboration.

[9]        It is worth noting several other points in relation to the Sheriff’s charge:

1.         Surprisingly, in a case such as this, she did not tell the jury that it was essential for conviction to follow that they should find the complainer to be credible and reliable in the essentials of her evidence.

2.         At pp 6-7 of the charge the sheriff expounds on the nature of circumstantial evidence saying this:

“In this case, the Crown has led evidence about facts and circumstances and it says that, when you take them together, they link the accused to the commission of the crimes charged beyond reasonable doubt.  The defence, on the other hand, say that you should not draw that conclusion, that you are being asked to speculate or guess and that you must not do that.  So you will have to decide what facts are proved, what weight you give to each of the facts that you find proved, taking these facts together how powerful and convincing a body of evidence is presented to you, what conclusions do you draw from it and, in particular, can you infer the accused’s involvement in the commission of each of the crimes?”


3.         The sheriff’s directions as to the interplay between differing sections of the Sexual Offences (Scotland) Act 2009 and the verdicts available to the jury, covered seven pages and were rather difficult to follow.  The advocate depute described them as “impenetrable”.

[10]      The first ground of appeal narrates that various parts of the statement were put to the complainer for the purpose of identifying prior inconsistencies in terms of section 263(4) of the 1995 Act.  In the defence speech these inconsistencies were referred to as reflecting on the credibility and reliability of the complainer, in anticipation that there would be a direction thereanent.  The jury asked to see the statement, and the sheriff quite properly refused to allow this.  The sheriff’s report seems to proceed on a misunderstanding that the appellant’s position on appeal was that the jury should have been given the statement.  That is not the case: the complaint is that a direction should have been given, and that the jury’s request underlined the need for an appropriate direction, since it showed they were concerned about the issue.  The problem was compounded by the direction that they could not see the statement because evidence was what was said in court only.

[11]      On the issue of distress, defence counsel had submitted that the evidence would allow the jury to conclude that any distress observed was unconnected with the relevant charge.  This was a matter about which the sheriff required to direct the jury, the distress being relied upon by the Crown for corroborative purposes.

[12]      The Crown’s written argument accepted that the inconsistencies between the complainer’s evidence and her statement were such that the sheriff ought to have given a direction to assist the jury in approaching these, but the advocate depute withdrew that concession, having considered the case of Masocha v HMA [2015] HCJAC 15.  The issue of the credibility and reliability of the complainer were adequately tested in cross-examination and covered by the general directions relating to assessment of evidence.


[13]      In Masocha the court emphasised that the evidence in a trial is for the jury to assess and it is not for the court to trespass on that territory.  In that case, in relation to the general challenges to credibility and reliability the issues were well-focused.  The court was not persuaded that any issue of a prior inconsistent statement arose in relation to the complainers on charges which remained before the jury.  The jury had been given a clear direction that, for a conviction to follow, they required to accept both complainers as credible and reliable in their essentials.  No further direction was required.  However, evidence had been given in relation to prior statements allegedly made, but denied, by witnesses on charges which were withdrawn.  The absence of directions about these statements was held to be fatal to the convictions.

[14]      The extent to which a Trial Judge may be required to give a direction on the issue of prior statements will depend very much on the circumstances of the case, the content of the statements, and the evidence given in relation to them.  The paradigm situation in which a direction will be required is where any issue arises as to the “adoption” of a statement by a witness.  Whether, and to what extent, a direction on the use of prior statements will otherwise require to be given will vary with each case.

[15]      This issue was recently considered by the court in the case of Moynihan v HMA [2016] HCJAC 85.  In that case also the complainer had been cross-examined as to prior statements inconsistent with her testimony on oath, and the Trial Judge made no reference to the statements in his charge.  In delivering the opinion of the court, the Lord Justice General (Carloway) said this [Para 8]:

“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.”


[16]      The court noted that the obligation to direct the jury on prior statements will depend on the facts and circumstances of the case, and the fact that reference has been made to a prior statement does not automatically mean that a direction is required.  The court went on to say (para 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.”


[17]      The critical direction would in fact be that the statement, insofar as not adopted, could not be used as proof of fact of its contents.  We accept entirely the generality of these observations.  However, the extent to which a direction might, in any individual case, be required, must also be seen in the context of the charge as a whole.  In each of Masocha and Moynihan the charge was otherwise unblemished, and in each case the trial judge had clearly directed the jury as to the need for the jury to accept the complainer as credible and reliable in all essentials before they could convict. In the present case, the charge was anything but otherwise unblemished.  In the first place, there was no direction that, for conviction to follow, the jury required to accept the complainer as credible and reliable.  Further, the directions suggesting that the crown case was to be approached as a circumstantial one, meant that the jury might have considered the evidence of the complainer merely to be one more element in that case to be weighed in the balance.  When the jury asked about the statement they were told that they could not see it because “a witness’s evidence is what they said in the witness box”.  Whilst this latter observation is correct as far as it goes, it at least ran the risk that, in the absence of a direction, the jury might think they were unable to use the statement even for the obvious purpose of a cross-check on reliability and credibility.  Finally, the context was also of a charge which was, as a whole, confusing.  The directions on the issue of distress whilst apparently a direction in favour of the defence, were nevertheless confusing, since the jury were told that the evidence was “available to you and relevant” but they were left in the dark about what its possible relevance might be, in light of the direction which followed.  The directions in relation to the permutations of verdict available to the jury on a simple charge of assault with intent to rape, were very difficult to follow.


[18]      In all the circumstances therefore we are satisfied that this is a case in which a direction was required, that the misdirection in context was a material one and that a miscarriage of justice has occurred.  We will accordingly allow the appeal in relation to ground 1.