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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice Clerk
Lord Abernethy
Lord Penrose
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[2006] HCJAC 5
Appeal No: XC425/04
OPINION OF THE COURT
delivered by THE LORD
JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
ROBERT KENNEY
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
______
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Appellant: Burns, QC; Allan McDougall
& Co
Respondent: Murphy, QC, AD; Crown Agent
24
January 2006
Introduction
[1] On
31 March 2004 the
appellant was convicted on indictment at Glasgow Sheriff Court of four
statutory charges of lewd, indecent and libidinous practices and one charge of
indecent assault. The complainers were
four girls each of whom was a pupil at a secondary school where the appellant
was a teacher.
[2] The
charges of which he was convicted were, as amended, (1) a charge of lewd,
indecent and libidinous practices against LM, committed at the school and at an
address in the same town on various occasions between 1 August 1999 and 6 March
2000; (2) a charge of indecent assault against LM committed at the school and
at the same address on various occasions between 7 March 2000 and 31 December
2000; (3) a charge of lewd, indecent and libidinous practices against CS,
committed at the school and in a motor vehicle travelling between the school
and another address in same town on various occasions between 1 August 2000 and
4 December 2000; (4) a charge of lewd, indecent and libidinous practices against
CM, committed at the school on various occasions between 1 August 2001 and 31
July 2002; and (6) a charge of lewd, indecent and libidinous practices against
JW, committed at the school on various occasions between 1 August 2001 and 30
September 2002. The appellant was
acquitted of charge (5) on a submission of no case to answer.
[3] In
charges (1) to (4) there was no direct corroboration of the complainer's
account. In charge (6) two eye witnesses
corroborated the complainer. The Crown
relied on the Moorov principle for
proof of charges (1) to (4), and also of charge (6) in the event that the jury
should not accept the evidence of the corroborating witnesses. The Crown submitted that the offences
libelled were closely related in time and place and in the manner and
circumstances in which they were committed.
[4] The
defence did not dispute that proposition (Charge, p 20). The line of defence was that none of the
complainers should be believed.
The sheriff's directions
[5] Sheriff
MacNeill QC directed the jury on the Moorov
principle in three stages. In the first,
she accurately described the principle in conventional terms (Charge, pp
11-13). In the second, she gave three
examples of the application of the doctrine (pp 13-20). In the third she rehearsed the essentials of
the doctrine and described its possible application to the evidence on charge
(6) (pp 20-22).
[6] This
appeal is concerned with the second part of these directions. It is not disputed that in the three examples
that the sheriff gave the Moorov
principle could apply.
[7] The
first example was the case where an accused is charged with attempting to fix
four football matches and where each of four players gives evidence that the
accused offered him a sum of money to lose the game.
[8] The
second example was a reference to HM Adv v
McDonald (1928 JC 42), a case in
which a father was charged with lewd and libidinous practices towards two
daughters. The sheriff read to the jury
a lengthy extract from the charge given in that case by Lord Blackburn (ibid, at pp 44-45). The transcript of her reading of this extract
does not coincide with the law report. According to the transcript, she omitted
certain words, confused "parent" with "panel" and used "where" instead of
"because." But, most importantly, at the conclusion of her quotation, she said:
"So if you believe one of these children then the
panel would be entitled to acquit at your hands on these charges because the
evidence of one child would be untrue and that of the other corroborated."
The correct reading should have
been:
"So that if you disbelieve
one of these two children then the panel would be entitled to acquittal at your
hands on all the charges, because the evidence of one child would be untrue and
that of the other uncorroborated."
One direction in Lord Blackburn's
charge that is accurately quoted in the transcript is
" ... there is sufficient corroboration of each
child's story in the story of the other - if on consideration of the evidence
you believe their stories - to entitle you to find the panel guilty of one or
all of the charges made against him" (McDonald
v HM Adv, supra, at p 44).
[9] The
sheriff's third example was a reference to HM
Adv v AE (1937 JC 96), a case in
which a father was charged with incest against two daughters. The sheriff read to the jury an extract from
the charge given in that case by Lord Justice Clerk Aitchison (ibid, at pp 98-99).
[10] In her Report, the sheriff says that the examples that she gave
were, on re-hearing and re-reading, perhaps more convoluted than she had
intended.
Submissions for the parties
[11] Counsel for
the appellant accepted that the directions given in the first and third parts
of the sheriff's directions were appropriate and accurate; but he submitted
that the sheriff misdirected the jury (a) by giving three examples where
similarity in time appeared not to be a key issue; (b) by reading to them a
direction of Lord Blackburn that was erroneous, namely the last direction that
we have quoted (supra), and (c) by
misreading the extract from HM Adv v McDonald (supra) that she was quoting.
Counsel submitted that it was the duty of the sheriff to direct the jury
that similarity in point of time was an essential element in the Moorov principle; that Lord Blackburn's direction was a
misdirection because, if it was necessary to apply the principle in relation to
two complainers both of whom were believed, the two charges hung together and
it was not open to the jury to convict of only one; and that the deficiencies in this second part
of the sheriff's directions, including the misreadings, could not be excused by
the fact that the directions that came before and after them were accurate.
[12] The advocate depute said that the Crown accepted that it was
unfortunate that the sheriff had chosen to refer to HM Adv v McDonald and HM Adv v AE and to read from them at
length. Nevertheless, she gave clear
directions immediately before and after she did so. There was no reason to think that she confused
the jury. The issue in the trial was
straightforward. If there was a misdirection, it was of the most technical kind. In any event, in the circumstances there was
no miscarriage of justice.
Decision
[13] The first and third parts of the sheriff's directions on the Moorov principle were in conventional
terms and were an accurate summary of it.
Her explanation of its applicability to the case was appropriate. In our view, she need have said no more than
that.
[14] We are surprised that she chose to refer to case law in the way
that she did. We doubt whether it is
helpful to a jury to read to them lengthy extracts from law reports that they
do not have in front of them. They may
find it difficult to put in context what is being read to them. Moreover, we cannot follow why she chose to
refer to charges given in trials held in 1928 and 1937, particularly since the
first was held before Moorov was
decided. In both of those cases the
directions were focused on the evidence led in the case.
[15] All that a judge or sheriff is required to do in such cases is
to give a concise definition of the Moorov
principle and some general guidance as to how it might be applied by the jury
to the evidence in the case.
The time
point
[16] The charges as amended covered courses of conduct extending
from 1 August 1999 to 30 September 2002 with
several overlaps and with no gaps. We
cannot see how this case, unlike cases such as Dodds v HM Adv (2002 SCCR 838), could possibly have raised any problem on the question of similarity in
point of time.
Lord
Blackburn's direction
[17] We agree that Lord Blackburn's direction on the possibility of
the jury's convicting on one charge only where the case depended on the
credibility of both of two complainers was a misdirection; but we cannot imagine
that that part of what the sheriff read made any significant impact on the
minds of the jury in a case where, as the verdict shows, they found all four of
the complainers to be credible and reliable.
The
sheriff's alleged misreading
[18] We are not satisfied that the sheriff misquoted the words of
Lord Blackburn. In this court we find
repeatedly that transcripts of charges to juries contain obvious inaccuracies
resulting, understandably, from the quality of the tape recording. Recordings of trial proceedings are regularly
affected by indistinctness and by background noise,
often it seems at critical points.
[19] But, if the transcript is accurate, it does appear that the
sheriff's reading seriously altered the sense of what was printed in at least
two respects. To that extent, on this
assumption, it can be said that there was a misdirection;
but, if so, we consider that in the context of the trial it was a misdirection
of the most technical kind.
[20] However, these criticisms have no practical significance in the
present case. The important point in
this appeal, in our view, is that the applicability of the Moorov principle to the evidence was not in dispute. The real issue was whether the jury believed
all or any of the complainers. The sheriff
correctly emphasised that the jury could apply the Moorov principle only if they believed the complainers. In so saying she got to the heart of the matter.
[21] We conclude therefore that if there was a
misdirection at all, it was one that had no bearing on the central issue
that the jury had to consider. There was
therefore no miscarriage of justice.
[22] We shall refuse the appeal.
