JULIAN STRUTHERS DANSKIN v. HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY |
Lord Justice General Lord Hamilton Lord Carloway | Appeal No: C803/99 OPINION OF THE COURT delivered by LORD CARLOWAY in NOTE OF APPEAL AGAINST CONVICTION and SENTENCE by JULIAN STRUTHERS DANSKIN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Kerrigan Q.C. ; Balfour & Manson
Alt: Smith Q.C., A.D.; The Crown Agent
4 July 2001
CONVICTION
[1]The appellant appeared at the Sheriff Court in Kirkcaldy on an indictment which libelled eight charges of shameless indecency and lewd, libidinous and indecent practices whilst he was a captain of a Boys' Brigade company against males who were or had been in that company. Charge (1) was one of lewd practices towards N.M. during the period 9th July 1985 to 8th July 1989, when the complainer was aged between ten and fourteen. In its final form, upon which the jury were asked to deliver a verdict, it alleged that on various occasions at Innerleven East Church, Methil, the appellant handled the complainer's private parts or induced the complainer to handle the appellant's private parts. It did not involve the use of any camera. This charge was found not proven. Charge (2) was one of shameless indecency towards N.M. after his fourteenth birthday but this was withdrawn in the course of the trial. Charge (3) involved a single lewd practice towards T.P. when the complainer was aged between twelve and fourteen but this too was withdrawn. Charge (4) again involved a single act towards T.P., this time of shameless indecency between 19th October 1988 and 18th October 1992, when the complainer was aged between fourteen and eighteen. The libel was that at Silverburn House, Leven, the appellant induced the complainer to expose his private parts and took photographs of him whilst naked. The jury convicted the appellant on that charge.
[2]Charge (5) was one of shameless indecency involving P.W., when the complainer was aged between fourteen and eighteen. Charge (6) again involved P.W. and alleged that on various occasions between 26th August 1995 and 28th February 1997, when the complainer was aged eighteen or more, at the premises of Smith & Grant, Solicitors, High Street, Leven, the appellant behaved in a shamelessly indecent manner by, amongst other things, inducing him to expose his private member and to masturbate and then filming him on videotape. It was conceded at the trial that, because of the age of the complainer, it was of the essence of this charge that the acts were performed "otherwise than in private". The libel was that the acts were performed in the presence of an unknown third party. Both charges (5) and (6) were withdrawn, the latter because the evidence from the complainer was that the acts were done in private. Charge (7) involved J.P. It libelled that on various occasions between 29th September 1985 and 28th September 1991, at Innerleven East Church, when the complainer was aged between eight and fourteen, the appellant used lewd practices by inducing the complainer to expose his private parts and by handling his private parts. Charge (8) was of shameless indecency involving J.P. It alleged that between 29th September 1992 and 28th September 1995, when the complainer was aged between fifteen and eighteen, at the offices of Smith & Grant and at Rathellan, High Street, Leven, the appellant, amongst other acts, induced him to expose his private parts and then photographed his private parts. The jury convicted the appellant of these two charges also.
1.The Theft of the Videotape
[3]The first witness for the Crown dealt with the appellant's role in the Boys' Brigade. The second witness was D.C. Gary Millar. His evidence, which was objected to in early course, related first to a surveillance operation in Glasgow on 13th January 1998. This operation was designed to catch two individuals who were in the process of extorting money from the appellant. The circumstances of that extortion were set out in detail in a statement (Production 41), signed by the appellant, given to D.C. Millar on 17th January 1998. The contents of the statement were indeed revealing. They disclosed that the appellant's business premises (the offices of Smith & Grant) had been broken into on the night of Saturday 20th December 1997. Initially only cash was noted to be stolen. In the evening of the following Saturday, the appellant received a telephone call which he recalled in his statement as consisting of the following:
Caller:Julian. Have you lost something ? I've something that you
want.
Appellant: Pardon. Who is it ?
Caller: You're a fucking paedophile.
Appellant: Pardon....
Caller: Do you want the press to know ? I'll 'phone you back. I'll give
you time to think.
The caller did telephone later and said :
"Julian. I have the fucking tape. Do you want it back ?"
At this, the appellant said that he realised what it was that the caller was referring to. The appellant continued with a narration about elaborate arrangements to meet with the extortionists in various public houses in Glasgow and maintained, in his statement, that the videotape was one belonging to a client which he was anxious to retrieve. This anxiety stemmed from a concern about the reputation of his firm because there had been previous difficulties, which his firm had been involved in, concerning a former partner who had stolen £700,000. Indeed, the appellant maintained to the police that it was this former partner, recently released from prison, whom he suspected. In any event, the appellant obtained and handed over some £20,000 to the extortionists. But they wanted more. By early January 1998, the appellant had instructed a private detective to assist him in identifying the persons concerned and purchased recording devices to videotape them and to trace the calls from them. Eventually, on Monday 12th January 1998, the appellant went to the police and reported the matter.
[4]As a result of the appellant's report and a subsequent police operation, the extortionists were caught. The videotape mentioned as having been taken by them (label 1) was recovered. This was the videotape of, amongst other thing, the events libelled in charge 6. At the trial, objection was taken to the leading of evidence from D.C. Millar concerning the police surveillance, the statement and the videotape. Part of the objection to the videotape and the statement was to the effect that the events covered by them were outwith the scope of the libel in relation to both place and date. It was also said that the videotape contained footage of a person who was not a complainer and events which were not covered by the libel. Because of this, there ought not to be any evidence led concerning it or of the break-in and its aftermath. It was also submitted that ultimately the evidence of the complainer in charge 6 was going to be that he was over eighteen at the time and therefore that charge would not be proved. It would be "prejudicial" to the appellant if, in these circumstances, the statement were nevertheless put before the jury. It had not been made under caution. The Crown had argued that the statement proved that the appellant was prepared to pay for the videotape in order to save embarrassment to himself. It was important as proof of his motives. It would also be relevant in relation to the credibility of the complainer P.W. The Crown did not intend to play any part of the videotape relating to events unconnected with those libelled in charge 6. The Sheriff repelled the objection on the grounds stated by the Crown. In fact the videotape was never played to the jury at all because, when the complainer P.W. gave evidence, he said that the events covered by the video took place in private (i.e. with only him and the appellant present) when he was over eighteen years of age. The charge was withdrawn on that basis in advance of the videotape being played.
[5]At the appeal, counsel for the appellant maintained that the appellant had not been afforded a fair trial because the Crown had adduced evidence of the statement, especially in relation to the paedophile accusation, in the knowledge of the complainer P.W.'s prospective evidence, i.e. knowing that they would not be able to prove charge 6. The statement concerned matters not within the scope of the libel and was prejudicial to the appellant. There ought to have been no reference at all to the extortion trial and the events leading up to it. Furthermore, the Crown should not have left charge 6 (and its sister charge 5), in play before the jury, knowing what they did about P.W.'s position. In addition, the sheriff ought to have directed the jury to ignore the contents of the statement when conducting their deliberations since they were irrelevant. Indeed the copies of the statement which had been distributed to the members of the jury ought to have been withdrawn from them prior to their being asked to consider the verdicts.
[6]The Advocate Depute submitted that the videotape and the statement relating to it were relevant to charge 6. According to the Crown precognition of P.W., a third party had been present at the time of the incident captured on the videotape. The Crown had thus been justified in leading the evidence and only withdrew the charge when the complainer had said something different from that recorded on precognition. The Crown had made no further reference to the statement and placed no further reliance on it.
[7]It is difficult to see how the content of the statement had anything to do with the appellant's motives and, even then, what these might have to do with the charges he faced. Furthermore, it is not easy to see what effect the videotape might have had on the credibility of the complainer P.W. in the context of a case in which he was not denying taking part in what was contained on the videotape. However, although it might be said with some force that the adducing of the evidence of the statement may not have been necessary for proof of the events libelled in charge 6, that falls some way short of maintaining that reference to its content was altogether irrelevant to proof of that charge. On the assumption that the Crown were entitled to pursue charge 6 - which, on the information they had, they were - proof of the recovery of the video as a result of the appellant's reporting of the matter to the police would have been evidence that the videotape emanated from him or, at least, his possession. Depending on the jury's interpretation of it, proof of his reaction to the extortionists' demands would also go towards proving that he was in some way involved with the allegedly shamelessly indecent events on the tape. The evidence on these matters could legitimately come from the appellant's own statement at or about the time to the police. There was, of course, no question of a caution being either required or appropriate at that stage.
[8]If, as is the case here, a statement is relevant to proof of a particular charge, there may still be circumstances where its use at a trial may be so unfair to an accused in all the circumstances that it, or parts of it, should still be excluded from the jury's consideration. However, such a situation does not arise here. All that the statement narrates is the events relative to the extortion. It contains no statement of wrongdoing by the appellant. It is true that it contains a passage in which the appellant states that he was accused of being a paedophile by an extortionist. However, in fact, as the jury learned, what was contained on the videotape was an episode in which the relevant complainer was an adult. The charge was dropped. In such circumstances, it does not seem at all likely that the jury would consider this material as "prejudicial" to the appellant in relation to their consideration of the other charges, once the facts about the videotape were known.
[9]The Sheriff could, of course, have given an express direction to the jury to the effect that they should disregard the contents of the statement. However, given his directions to the jury on how they should approach the evidence on the charges that remained for their consideration (infra), there was no need for him to do so. It was a matter for his judgment in the whole circumstances of the trial. Given, especially, that the jury appeared to follow the evidential directions of the Sheriff on the charges and acquitted the appellant of one of the four remaining, there is no reason to suppose that they might have been influenced against the appellant by his statement concerning the theft of the videotape. Similar considerations apply to the videotape. There was no need for the Sheriff to direct the jury not to have regard to its existence, given his express directions upon what they ought to consider relative to the live charges. Again, it was a matter for his judgment.
2.Pre-Trial Publicity
[10]Counsel for the appellant complained that the Sheriff had not told the jury to ignore the extensive publicity concerning the earlier extortion trial, the publicity surrounding the appellant's trial and anything said to them outwith the Court concerning the case. There was produced a large number of press reports concerning the trial of the extortionists in July and August 1998. These were headlined with words referring to a gay blackmail or pornographic film trial and contained accounts of, amongst other things, the appellant's evidence which followed, to a large extent, the contents of his statement. They also made reference to the trial judge's charge to the jury which referred to the appellant as being "very unsatisfactory and unwholesome". Even after the trial, there was coverage in relation to the appellant's activities with reference to his position as a solicitor, captain of the Boys' Brigade, chairman of East Fife Football Club and member of Innerleven East Church. These press reports were, for the most part, well over a year old before the appellant's trial took place. The exception was an article in May 1999 (almost six months before the trial) which referred to the appellant as a "shamed lawyer" from whom a "gay porn video" had been stolen. It said that he had hired an "ex-cop" to assist him in his defence at the forthcoming trial. At the trial, counsel for the appellant had made no submission that these reports were likely to have an adverse influence on the jury and the Sheriff did not consider that any express direction was required. During the course of the trial, the Sheriff was addressed relative to a possible contempt by the East Fife Mail on the basis that its report of the complainer J.P.'s evidence was not fair and accurate. The Sheriff did not consider that there was any contempt. He had in mind, the words of Lord Prosser in Cox and Griffiths, Petitioners 1998 J.C. 267 where he observed (at 276 G) :
"Juries are healthy bodies. They do not need a germ-free atmosphere. Even when articles in the press do contain germs of prejudice, it will rarely be appropriate, in my opinion, to bring these to the attention of the court, far less for specific directions to have to be given, far less for the issue to be treated as even potentially one of contempt."
The Sheriff did, when the East Fife Mail article was complained of, advise the jury that it was the jury's function to find out what facts were established on the evidence they had heard and not what was reported in the newspapers. He directed them to disregard what was in the newspapers and to rely on what they found in the evidence. The appellant nevertheless complained that this was not repeated when the Sheriff came to charge the jury.
[11]Whether it will be necessary for a trial judge to give a jury express directions in his charge to disregard what is said in the press or some parts of it will depend on the facts and circumstances of the case, including whether or not he has had occasion to advise the jury upon press reports in the course of the trial. In this case, the Sheriff decided that no direction in his charge was required, especially in the light of Lord Prosser's observations. It is impossible to disagree with his conclusion. The Sheriff gave the jury the relatively standard directions to proceed without reference to any sympathy, prejudice or distaste which they might feel and to apply themselves to the issues raised in the indictment. He stressed to the members of the jury that they were exclusively the judges of fact and required to make up their minds in light of the evidence which they had heard. He repeated the need for them to proceed upon the evidence and to perform their tasks rationally and dispassionately and without the influence of emotion. In the context of this case, that was sufficient and no express reference to what might have been said in the newspapers was required.
3.Evidence on Charges Subsequently Withdrawn
[12]Apart from the specific criticisms concerning the statement and the video, counsel for the appellant submitted that the Sheriff ought to have given the jury a specific direction to ignore all the evidence in the case which related to charges which had been withdrawn. The Sheriff's practice, when a charge was withdrawn and he was acquitting an accused, was to tell the jury that he had acquitted the accused and that they could score out the relevant charge from their indictments and need not deliberate further upon it. This was inadequate, maintained counsel for the appellant, and a broader direction ought to have been given for them to ignore the evidence given on the charges upon which the appellant had been acquitted. This evidence was notably that of the complainer P.W. and part of the evidence given by the complainers N.M. and T.P.
[13]There is no general principle that, once a charge is withdrawn and an accused acquitted of it, a jury must entirely disregard the evidence already given in relation to it. It may be that the evidence concerning the substantive parts of the charge cannot be used as corroboration of other charges in cases where the principle referred to in Moorov v Her Majesty's Advocate 1930 JC 38 is invoked. That is not to say that the evidence is of no value at all in respect of the other charges. On the contrary, there may well be passages from the witnesses speaking to the withdrawn charge which can help in assessing, for example, credibility and reliability of witnesses on other charges. There was, therefore, no general requirement for the Sheriff to give the direction sought and there were no special circumstances which meant that such a direction was needed in this case.
4.Alleged Misdirections on Evidence of the Complainer T.P.
[14]Counsel for the appellant submitted that in relation to the application of the principle in Moorov (supra) the Sheriff had misrepresented the evidence of the complainer T.P. in such a manner as to give the jury the impression that it could be taken as supporting the evidence of the other two remaining complainers N.M. and J.P. The passage complained of was in the following terms :
"While there are similarities in the behaviour described by the witnesses, there are also dissimilarities. But nevertheless...the actings charged and spoken to are all of a sexual nature. Thus, for example, you will recall that the witness N.M. said that he knew that the accused liked to be in power and to humiliate people. You may consider that the conduct of the accused towards T.P. in the circumstances of giving him a choice of punishment and taking photographs was possibly humiliating. And then in relation to J.P., you will recall his evidence that on the occasion when he took his pants down in the room of the church hall the accused said to him: 'You'll remember the humiliation you went through to get it'. This was in relation to the money for cannabis. And later in another incident, I think in the office, in relation to charge 8, there was the photographing of J.P. and the choices given to him in one of those incidents, the three choices. It is for you to decide what you make of this evidence and what inference you will draw from it, if you accept it...If you do accept the evidence, then you would be entitled to infer that there was an underlying purpose to this behaviour."
The complaint made was that the complainer T.P. had not given evidence of humiliation. The evidence which T.P. had given was that the appellant had caught him smoking cannabis. The appellant told him that he would tell his parents about this unless the appellant did as he asked. The appellant gave him three options. First, he could streak naked up and down the camp at Silverburn, where they were staying. Secondly, he could go on the "skid" tree, an exercise which involved him stripping to his boxer shorts and having buckets of water thrown at him. Thirdly, he could have photographs , or, as it turned out, to be more specific, ten to twelve Polaroid shots taken of him naked, standing in an empty bath. In those circumstances, although the witness did not say he was humiliated by this, it was in our view entirely reasonable for the Sheriff to put the matter as he did to the jury in inviting its members to consider, in relation to each complainer including T.P., whether there was an underlying element of humiliation that might provide the undercurrent necessary to apply the principle in Moorov (supra). He did not say that they had to apply it but merely that this was something for their consideration if they accepted the evidence. This was against a background of clear directions that it was their view of the evidence which counted.
5.Alleged Misdirections on Episodes outwith the Times and Places in the Libel
[15]In accordance with usual practice, the dates on the indictment in relation to the complainers tended to follow their birthdays. In the case of T.P., who was born on 19th October 1974, charge 4 involved a single act occurring between 19th October 1988 and 18th October 1992, when the complainer was aged between fourteen and eighteen. In his charge, the Sheriff directed the jury that :
"On the evidence of T.P., the incident involving him occurred in the years ranging from 1987 to 1989, because again you will recall different ages were referred to as to when the incident happened."
T.P. had said in evidence initially that the incident had happened when he was thirteen or fourteen (i.e. 19th October 1987 to 18th October 1989). However, he then said he started taking cannabis when aged fourteen and the incident was after that, thus putting it sometime after 19th October 1988. He later accepted that it could have been before he was fourteen despite accepting that it was after he started using cannabis. Finally, he said that, on the basis that it was after that time, then he would have been fourteen or fifteen.
[16]The witness had thus spoken to the incident possibly occurring before the period libelled and the complaint was that the Sheriff ought to have given the jury a specific direction on this to the effect that they had to acquit if they were not satisfied that the episode occurred within the dates in the libel. This failure, it was said, could have been crucial as, ultimately, the evidence upon which the jury based a conviction on this single episode was the only corroboration available for a conviction on charges involving J.P. The evidence was, in short, crucial for any form of conviction on the indictment.
[17]The Sheriff could have given a specific direction concerning the dates in the libel relative to the complainer T.P. but did not do so. However, what he did say in relation to charges 4 and 8 was :
"In each of these charges you will note that the period covered is when each boy was aged between 14 and 18. Again the question for you to consider is whether the conduct was carried out by the accused."
This made it plain just what the charge alleged, so far as the time period was concerned. The jury convicted the appellant in terms of charge 4 and the only conclusion to draw from that is that the jury considered that the crime was proved to have been committed between the dates specified.
[18]In relation to the loci, the Sheriff did direct the jury that so far as similarity of place was concerned the Crown alleged that all the episodes occurred:
"in places with which the accused essentially had a connection: the rooms in the church hall; his home at Silverburn; and the office premises of his firm at Leven."
This was wrong because his home was not at Silverburn. However, this was an obvious error and the jury would have been well aware that Silverburn was where the camps were held and not where the appellant lived. It was still a place with which the appellant had a connection and nothing material turns on this slip.
[19]In relation to the J.P. charges, counsel pointed out that there was a time gap between the two charges, with Charge (7) libelling various occasions between 1985 and 1991, when the complainer was aged between eight and fourteen, and charge (8) alleging incidents between 1992 and 1995, when the complainer was aged between fifteen and eighteen. The period when the complainer was aged fourteen was missing and yet J.P. did say in evidence that certain of the events might have happened when he was fourteen. For similar reasons to those given in relation to the charge involving T.P., the jury have convicted the appellant of incidents occurring during the periods libelled. There was evidence upon which they were entitled to do so and there is no reason to suppose that they did not intend to convict of what was narrated in the libel.
6.Alleged Misapplication and Misdirections on the principles in Moorov (supra)
[20]The evidence available to the jury for the purposes of corroboration came from the three complainers: N.M.; T.P.; and J.P. The episode regarding N.M. was not proved and his evidence about it could not then be used to corroborate what occurred with T.P. or J.P. T.P. spoke to the single episode occurring when he was fourteen or fifteen (19th October 1988 to 18th October 1990). This was as narrated above and concerned his being photographed as a choice of punishment for smoking cannabis. The only other evidence was that of J.P. on charges (7) and (8). The first of these libelled episodes at Innerleven Church initially involving the complainer being induced to take his trousers down and the appellant touching him on top of his pants when the complainer was ten or eleven. It also concerned a further episode a year and a half later when he was induced to take down his trousers and pants on being found taking cannabis. He was asked if this humiliated him and he agreed that it did. He would, the appellant said, recall that humiliation if he were again tempted to take cannabis. On the next charge, the complainer spoke to going to the offices of Smith & Grant on occasions and being induced to take his clothes off before having his private parts photographed in sundry poses using a Polaroid camera.
[21]It was submitted that there was insufficient evidence of an adequate link in time, place and circumstances to justify the application of the principle in Moorov (supra). However, we are entirely satisfied that the necessary link was present. First, there is the link between the T.P. episode and the J.P. episodes by virtue of their connection with the appellant through the Boys' Brigade. Secondly there is, in the T.P. episode and the later J.P. episodes, the use of the Polaroid. Third there are the places where the episodes take place being places to which the appellant had access. Fourth, the incidents are all of a sexual nature involving adolescent males. Fifth, there is the humiliation or punishment element described above relative to cannabis use. In relation to time, the T.P. incident falls within the extremes of the charges involving J.P. All of these coincidences appear sufficient for a jury to regard the T.P. episode and J.P. incidents as a course of conduct of the type set out in Moorov (supra). The Sheriff did not err, therefore, in repelling a "no case to answer" submission on this point.
[22]The Sheriff's directions on the application of the principle of similar acts corroboration explained in Moorov (supra) were by no means expansive. They were sufficient, on the other hand, to explain adequately to the jury just what the principle involved in a case like the present. He said, amongst other things, this :
"What one has to look at is whether there has been established such a connection between the separate acts indicated by their relationship in time, their character, their circumstances, as to establish themselves as subordinates in some unity of intent or project which lies beyond them but is related to them. In other words, it is for you to decide whether the separate acts spoken to directly by each of the witnesses who are complainers are so connected, or so inter-related, or so similar by reason of the time they took place, by the circumstances and by the character of the offence that you can draw an inference or conclusion that all these charges are part of a course of criminal conduct systematically pursued by the same person...if you accept the evidence of all three witnesses then you would be entitled to return a verdict of guilty on the charges. If, for instance, you accept the evidence of only two of the witnesses of three, then you would be entitled to find the accused guilty of the charges to which their evidence related...If, however, you accept the evidence of only one of the complainers then there is obviously no corroboration in the terms which I have been describing to you and you would then require to acquit the accused on all the charges."
The jury appear to have accepted that approach and convicted of the charges relating to only two of the complainers. This they were entitled to do and, for that and the other reasons set out above, the appeal against conviction is accordingly refused.
SENTENCE
[23]The appeal is also against sentence, the appellant having been sentenced to eighteen months imprisonment coupled with a nine month supervised release order. Counsel for the appellant made a number of points. The appellant had been convicted of considerably fewer charges than he had initially faced. He was 48 years of age of otherwise good character. He was a solicitor, being the senior partner in Smith & Grant in Leven. He was a director and major shareholder in East Fife Football Club. Both these enterprises employed several people and his conviction was likely to jeopardise their positions. The appellant lived with his 85-year-old mother who was infirm and dependent upon him. He himself was suffering from diabetes and high blood pressure. The Social Enquiry Report reported that a full and formal Risk Assessment had considered him as at high risk of re-offending given the nature of the offences, the breach of trust involved, the time scales and the appellant's continued denial of guilt. It did, however, mention possible alternatives to custody.
[24]The Sheriff advises that he took all these matters into account in determining that only a custodial sentence was appropriate and in selecting the length of that sentence. Given the nature of the offences, committed whilst the appellant was in a position of trust in respect of these young complainers, the sentence is neither inappropriate nor excessive and the appeal against sentence is also refused.