H.J.L. v. HER MAJESTY'S ADVOCATE
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Justice Clerk Lord MacLean Lord Hamilton | Appeal Nos: C879/01 - XC102/02 OPINION OF THE COURT delivered by LORD MacLEAN in APPEAL AGAINST CONVICTION by H.J.L. Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: S. Livingston; Drummond Miller
Respondent: M. MacLeod, A.D.; Crown Agent
18 December 2002
[1]The appellant, HJL, was convicted at the High Court, sitting in Glasgow, of two charges of rape and one of indecent assault. The complainers are described as his sisters, but, both in the social enquiry report and in a report by a consultant clinical psychologist, they are referred to as step-sisters of the appellant. It may be that in fact they are half-sisters of the appellant. The appellant was sentenced to eight years imprisonment which was not backdated because he had failed to appear at an earlier diet of trial, a charge to which he pled guilty at the outset of the trial proceedings on 15 August 2001.
[2]The conviction in relation to his sister, E, was unanimous and in the followings terms:
"On various occasions between 29 September 1972 and 19 February 1982, both dates inclusive, at [addresses], both Glasgow, you did assault [name], born 20 February 1966, your sister, then residing there and now care of Strathclyde Police, Baird Street, Glasgow, lie on top of her, rub your body against her body, cover her mouth with your hand, remove her from a bed, lift up her night-clothes, handle her private parts, forcibly place her hand on your private member and compel her to masturbate you to the emission of semen, seize her by the hair, forcibly insert your private member into her mouth, force her to suck same and you did rape her."
The evidence disclosed that by the time E was 11 or 12 the appellant was having sexual intercourse with her against her will and that this happened every week for a number of years.
[3]The conviction in relation to his sister, B, was by a majority and was in the following terms:
"On various occasions between 29 September 1972 and 19 February 1982, both dates inclusive, at [addresses], both Glasgow, you did assault [name], born 23 February 1967, your sister, then residing there and now care of Strathclyde Police, Baird Street, Glasgow and did handle her private parts, masturbate in her presence to the emission of semen, forcibly place her hand on your private member and compel her to masturbate you to the emission of semen, remove her clothing, lie on top of her, and you did rape her."
In her case the appellant first had sexual intercourse with her when she was about 121/2 years of age. Intercourse was continued once or twice a week until she was 15. The appellant commenced his course of conduct towards each complainer when he was aged 12 and ceased when he was aged 21.
[4]The conviction in relation to his sister, F, was unanimous and was in the following terms:
"On an occasion between 2 August 1973 and 1 August 1975, both dates inclusive, at [address], Glasgow you did assault [name], born 2 August 1964, your sister, then residing with you and now care of Strathclyde Police, Baird Street, Glasgow and did place your hands inside her clothing."
[5]In relation to each charge the only witness to give evidence about what the appellant did was the individual complainer in that charge. The Crown case therefore depended upon the application of the principle enunciated in Moorov v. H.M. Advocate 1930 J.C. 68. Adopting that principle, the trial judge directed the jury in these terms in relation to the charges involving E and B:
"Now, in the ordinary case, as I have already said, there have to be two sources of evidence in relation to any charge and each charge stands on its own, and you may think, having said that, that because there is evidence of only one witness in each charge, that neither has been proven.
That is not necessarily the case, and here I give you directions on a special aspect of the law of corroboration. In the ordinary case, as I have said, there have to be two sources of evidence. In fact, in relation to any charge, each charge stands on its own and the fact that a man is guilty on one charge would not show that he was guilty of another, but there is what is sometimes seen as an exception to this rule, although it is perhaps only a special application of it which you have to consider in this case.
It arises in this way: where a man is charged with a number of offences, two or more, each of which is spoken to by only one witness, then if - and only if - the offences are sufficiently similar to each other in place and method and character and circumstances and sufficiently closely linked in time to satisfy you that each of them was really just one element, one incident in a single course of conduct, then you can treat the evidence of each witness as evidence of that course of conduct, so that the witnesses corroborate each other in establishing that that course of conduct existed by corroborated evidence and you could therefore convict of all the offences even though each offence looked at on its own is spoken to by only one witness. Before you can convict here you must be satisfied that the Crown have proved that there was a single course of conduct persistently pursued, displaying some underlying unity which makes each offence simply a part of that one course of conduct. That means, of course, you cannot convict the accused either of assault or of the element of rape in relation to only one sister. Unless you believe both sisters the accused must be acquitted in relation to both of them, even if you do not believe one of them and not the other, because if you believe only one there would be no corroboration.
So, if you were to believe the allegation of rape in respect of one of the girls you must also believe it in respect of the other. (Italics added)
In other words, what you have to do is to look separately at the evidence of each girl in relation to the charge that concerned her, treating, as I said, the assault and rape as if they were separate charges, and ask yourselves if you were satisfied beyond reasonable doubt that she is telling the truth. It is only if you do believe both that you then go on to ask whether you are satisfied that they corroborate each other in the way that I have described, and any conviction would have to be limited clearly to the matters on which you do find that they corroborate each other in this way, and that it is part of one persistent course of conduct."
We have quoted this part of the charge at some length in view of the second ground of appeal. It alleges that the trial judge misdirected the jury in the passage that we have italicised. In his report the trial judge accepts the criticism of his charge in this ground of appeal, but he explains that it would have been clear to the jury from the terms and tenor of the charge as a whole that what was said was an error of expression and that that would not have misled the jury.
[6]We agree with the trial judge. It is fallacious to wrest from its context the one sentence founded upon. When the charge is read as a whole it is perfectly clear to us that the jury would not have been misled and should have understood how they were to approach the evidence.
[7]On the other hand, it is equally clear that a minority of the jury did not follow the directions which the trial judge gave. Had the verdicts of the jury been by a majority, no question would have been raised and no doubt would have been advanced. It would, however, appear that while the jury believed the first and third complainers, a minority did not believe the second complainer. In the first ground of appeal on behalf of the appellant it is said that the trial judge should have declined to accept these verdicts, that he should have reminded them of the directions he had already given, and that he should have sent them out again to reconsider their verdict (sic) in light of any additional directions he gave, or taken such other steps as were necessary to ensure that the verdicts were in accordance with the directions given.
[8]In his report the trial judge said that he was aware of the apparent inconsistency in the jury's verdict. He was not asked at the time by either the Crown or the defence to refuse to accept the verdicts. He describes the verdicts as "perhaps a little odd", but suggests that they were valid verdicts because at least a majority of the jury believed all three complainers and so convicted the appellant on all three charges.
[9]We agree with the trial judge's observations. While an undetermined minority had not correctly followed the trial judge's directions, the verdicts demonstrate that a majority did so. That being so, it was not necessary for the trial judge to remind the jury of his directions and to send them out again to reconsider their verdicts. In our view there is no question of the verdicts being "returned in a silly form" which required intervention and clarification by the trial judge (compare Took v. H.M. Advocate 1988 S.C.C.R. 495).
[10]It is also submitted on behalf of the appellant in the last ground of appeal that the cumulo sentence of eight years imprisonment imposed on the appellant was excessive. The notice of previous convictions served on the appellant ends with a conviction on 27 May 1982. That, plainly, is because the last date in charges 1 and 2 is in 1982. The appellant's record contains nothing analogous with the offences of which he has been convicted. We have, however, been informed that he was convicted in 1983 of indecently assaulting a female child and that he received a sentence of eight months imprisonment which is said to have been one year's imprisonment in the social enquiry report. That conviction is potentially relevant to an assessment of risk although it could not, of course, be libelled against the accused as a previous conviction. There have been no convictions for any sexual offences since then. The clinical psychologist concludes that it is difficult to identify a risk level of sexual offending in the future. He reports that the appellant is of dull normal intelligence with limited educational ability. Within the family he was regarded as somewhat simple. What must also be taken into account is that the appellant was only 12 when he embarked on the course of conduct towards his sisters, E and B. Having regard to all the circumstances, we are of opinion that the sentence imposed was excessive. We will, therefore, quash that sentence and impose instead one of five years imprisonment to run from the same date, namely 19 October 2001.