APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Johnston

[2007] HCJAC 8

Appeal No: XC788/04

OPINION OF THE COURT

delivered by THE LORD JUSTICE CLERK

in the appeal

D A

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

For the appellant: Shead; Russel & Aitken, Denny

For the Crown: Prentice, Sol Adv, AD; Crown Agent

30 January 2007

The conviction

[1] On 6 September 2004 the appellant was convicted at Falkirk Sheriff Court on four charges of lewd, indecent and libidinous practices. With the deletions made by the Crown and the amendments made by the jury, the convictions were returned in the following terms:

"(1) on a number of occasions between 1 January 1991 and 26 September 1995, both dates inclusive, at [locus 1], you [DA] did use lewd, indecent and libidinous practices and behaviour towards [MA], your step-daughter ... then aged between 7 years and 12 years ... and did remove her underpants ... touch her naked vagina, insert your finger into her vagina, lick her vagina, induce her to touch your naked penis, induce her to masturbate you, and handle her breasts on top of her clothing.

(2) on a number of occasions between 27 September 1995 and 31 March 1996, both dates inclusive at [locus 2], you [DA] did use lewd, indecent and libidinous practices and behaviour towards [MA] ... your step-daughter, a girl then above the age of 12 years and under the age of 16 years and did remove her underpants ... touch her naked vagina, insert your finger into her vagina, lick her vagina, induce her to touch your naked penis, induce her to masturbate you, and handle her breasts on top of her clothing; CONTRARY to the Sexual Offences (Scotland) Act 1976, Section 5.

(3) on a number of occasions between 1 April 1996 and 26 September 1999, both dates inclusive, at [locus 2], you [DA] did use lewd, indecent and libidinous practices and behaviour towards [MA] ... your step-daughter, a girl then of or over the age of 12 years and under the age of 16 years, and did remove her underpants ... touch her naked vagina, insert your finger into her vagina, lick her vagina, induce her to touch your naked penis, induce her to masturbate you, and handle her breasts on top of her clothing; CONTRARY to the Criminal Law (Consolidation)(Scotland) Act 1995, Section 6.

(004) between 14 October 1994 and 31 March 1996, both dates inclusive, at [locus 2] you [DA] did use lewd, indecent and libidinous practices and behaviour towards [DK], born 14 January 1981, your step-daughter, a girl then above the age of 12 years and under the age of 16 years, and did take her hand and place it inside your underpants and did induce her to masturbate you; CONTRARY to the Sexual Offences (Scotland) Act 1976, Section."

The facts

[2] The complainers are sisters. The appellant was their step-father. They had two half-sisters of whom the appellant was the father.

[3] MA said that the first instance of abuse occurred at the locus libelled in charge (1) when she was about eight or nine years old. Her mother was in hospital at the time. She became distressed. The appellant took her to bed to comfort her. She awoke to find him putting his hands inside her pants and touching her vagina. When the family moved to the locus libelled in charges (2), (3) and (4), there was a regular pattern of abuse by the appellant of the kinds libelled, usually when he returned drunk on Saturday nights after an evening at the local public house with her mother. Since he was often violent to her mother on such occasions, she took to joining them in the living room when they came home and remaining there until the appellant fell asleep or her mother went to bed. The incidents occurred when her mother had gone to bed. MA was asked how many times the appellant made her masturbate him. She replied "Quite a lot. I'm not sure how many." This was when she was at high school (Transcript, p 49). The abuse took place at least twice a month until the appellant left the family home when she was 15.

[4] MA's elder sister DK spoke to the single incident libelled in charge (4). She thought that it occurred when she was 14. She was babysitting for one of her half-sisters, SA, whom she took to sleep in her mother's bed. In evidence in chief she said that she was asleep when the appellant and her mother came home. They came into the bedroom. They got into the bed. Her mother fell asleep. When asked what happened when the appellant got into the bed beside her, she described the acts libelled (Transcript, pp 10-12). She said that while he was doing these things, "I told him that it was me a few times." She got no response from him when she said that. She thought that he was just drunk and was mistaking her for her mother. After a few minutes he either fell asleep or pretended to be sleeping and she got out of the bed (ibid, p 13).

The observations of the procurator fiscal depute on the law

[5] At the outset of her speech the procurator fiscal depute said that she would mention a few legal points, but that the sheriff was the master of the law and that if she or counsel for the defence should mention the law and get anything wrong, it would be corrected by the sheriff in his charge (Transcript, pp 2-3). Later, she addressed the jury on the question of reasonable doubt in the following terms.

"Reasonable doubt, ladies and gentlemen, is based on a reason arising from the evidence. It cannot be something trivial or fanciful. It has to be the kind of doubt for example in your ordinary lives that would stop you from putting an offer in on a house or from accepting a job offer. It has to be a feeling in the back of your mind that makes you think no, this is just not quite right, there is something about it not right. So what we have to look at, if we look at it the other way round, you must be reasonably certain one, that there was a crime committed and two, that the accused was the person who committed that crime" (Transcript, p 5).

It is not disputed that these observations embodied two errors. First, a reasonable doubt need only be one that would cause a juror to hesitate or pause before making an important decision in the conduct of his own affairs, not one that would cause him to stop. Second, the standard of proof beyond a reasonable doubt is not the same as that of reasonable certainty (cf CWA v HM Adv, 2003 SCCR 154).

The sheriff's charge

[6] The sheriff charged the jury on the question of standard of proof in terms that counsel for the appellant does not criticise (Charge, pp 7-8). He expressly corrected the first of the erroneous comments of the procurator fiscal depute on the subject.

[7] In dealing with charge (4) the sheriff reminded the jury of DK's evidence of the possibility of mistaken identity. He said the following:

"And you may not have any difficulty in coming to a conclusion as to intent in relation to charges 1, 2 and 3, spoken to by [MA]. But the issue has been put in focus by Mr Moggach in relation to charge 4. You will remember [DK] said quite candidly that she wondered whether he had mistaken her for her mother.

Now, you will remember the circumstances that she told us about on that occasion. She said she had been in bed with [SA], her half-sister. They had both fallen asleep. Their parents had come in and had got into bed. When they went to sleep of course there was only [SA] and [DK] were in the bed, and they were apparently side by side.

Then when [DK] woke up, telling us that she found her stepfather engaged in this behaviour towards her, she was on the edge of the bed, he was next to her, then [SA] and then [DK's] mother.

Now, that is the context in which you must consider whether [the appellant] intended an assault upon [DK] or whether he thought that the person next to him was in fact his wife. And you may consider that the evidence is that he placed himself between [DK] and [SA], and that his wife was at the other side of the bed, with [SA] between him and her. But these are matters for you to consider, ladies and gentlemen" (Charge, pp 23-24).

Submissions for the appellant and our conclusions

The applicability of the Moorov principle

[8] Counsel for the appellant submitted that the offences to which MA spoke were not related sufficiently closely to the single offence to which DK spoke to entitle the jury to apply the Moorov principle. MA spoke to numerous incidents occurring regularly over a period of years, all but one of which occurred in the living room. DK spoke to a single incident that occurred in bed.

[9] We were at first concerned by the preliminary question whether DK had given evidence of the commission by the appellant of the offence libelled, particularly since she said that the appellant was drunk and that she thought that he was mistaking her for her mother. We have come to the conclusion that there was sufficient in the evidence of DK to entitle the jury to conclude that the appellant knew that it was the complainer whom he was touching and that he deliberately committed the acts libelled. We have in mind particularly DK's evidence that she told him a few times that it was she whom he was touching, but that he did not respond.

[10] The question then is whether the evidence of DK was capable of corroborating the evidence of MA on the other charges. In our opinion, it was. The fact that it involved only one incident did not prevent it from corroborating the course of conduct spoken to by MA (S(NK) v HM Adv, 2006 SCCR 70). Both of the complainers were the appellant's step-daughters. Although all but one of the incidents spoken to by MA occurred in the living room, the first of them occurred in the bed of her mother and the appellant, as in the case of DK. Many of the acts committed against MA involved her having to masturbate the appellant, as in the case of DK. Acts of that kind occurred when the complainers were at a similar age. We reject this ground of appeal.

Directions on standard of proof.

[11] Counsel for the appellant submitted that since the procurator fiscal depute had erred in her definition of reasonable doubt in two material respects, the sheriff ought expressly to have dealt with both errors.

[12] In our opinion, it would be no bad thing if those who prosecute and defend were to refrain from addressing juries unnecessarily on points of law, particularly since they so often get them wrong. Such forays into the province of the court create a serious risk of confusion and make the task of the trial judge or sheriff even more difficult. It would have been quite sufficient if the procurator fiscal depute had told the jury that the Crown had to satisfy the standard of proof beyond reasonable doubt and had left it to the sheriff to explain to the jury what that meant.

[13] The sheriff expressly corrected the first of the errors of the procurator fiscal depute, but not the second (Charge, p 8); but we do not regard that as a misdirection. The sheriff explained at the outset the respective functions of judge and jury. The procurator fiscal depute herself had warned the jury that they must follow the directions of the sheriff on matters of law. In our view, the sheriff was entitled to make the judgment that he should comment on only the more obvious of her two errors, on the view that his own directions on reasonable doubt would be a sufficient safeguard in the circumstances. He himself gave accurate directions on the subject. We reject this ground of appeal.

Directions on honest belief

[14] Counsel for the appellant submitted that the sheriff erred in failing to give the jury express directions on charge (4) on the question of error arising from the appellant's honest belief as to the identity of the person whom he was touching.

[15] The trial judge or sheriff must always give directions on each substantive line of defence; but in our opinion the sheriff did not have to treat the evidence of DK on this point as he would have treated a substantive defence of honest error. DK was merely expressing the subjective interpretation of the appellant's conduct that she made at the time. She did not provide any objective evidence from which the jury could conclude that the appellant himself was in error as to the identity of the person whom he was touching. On the contrary, she said that despite her repeatedly saying to him that it was she and not her mother whom he was touching, he carried on. The appellant did not give evidence. In these circumstances, we do not consider that the sheriff was under any obligation to direct the jury on the question of absence of mens rea by reason of the appellant's honest belief that he was touching his wife. However, the sheriff did not overlook the point. He dealt with the possibility of honest belief, if it was an issue at all, more than adequately in the passage that we have quoted. We reject this ground of appeal.

Disposal

[16] We shall refuse the appeal.

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> D.A. v. Her Majesty's Advocate [2007] ScotHC HCJAC_08 (30 January 2007) URL: http://www.bailii.org/scot/cases/ScotHC/2007/HCJAC_8.html Cite as: [2007] HCJAC 08, [2007] ScotHC HCJAC_08, [2007] ScotHC HCJAC_8

Scottish High Court of Justiciary Decisons

Lord Justice Clerk

Lord Osborne

Lord Johnston

[2007] HCJAC 8

Appeal No: XC788/04