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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Sweet v. Her Majesty's Advocate [2002] ScotHC 73 (06 June 2002) URL: http://www.bailii.org/scot/cases/ScotHC/2002/73.html Cite as: [2002] ScotHC 73

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Sweet v. Her Majesty's Advocate [2002] ScotHC 73 (06 June 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord MacLean	Appeal No: C197/01 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL by STUART GILBERT ROBERTSON SWEET Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Gilchrist; Blair & Bryden

Respondent: Di Rollo, QC, AD; Crown Agent

6 June 2002

1. The appellant was tried at Rothesay Sheriff Court in February 2001 before Sheriff J.P. Herald and a jury on the following charge:

"on 28 June 1999, at the house occupied by you at 13 Castle Street, Port Bannatyne, Isle of Bute, you did assault Elizabeth Edgar, c/o Rothesay Police Office, High Street, Rothesay and repeatedly punch and kick her about the head and body to her severe injury."

He was found guilty and sentenced to 18 months imprisonment. He appeals on the ground that the sheriff misdirected the jury on the essential issue of corroboration.

2. This was an unusual case. Neither the complainer nor the appellant could give any account of events on the night in question since neither had any recollection of them.
3. The case for the Crown was therefore based entirely on circumstantial evidence. In outline, the case was that the appellant and the complainer had been seen together in the course of the evening at the house of the witness Mrs. Tierney and had thereafter been seen to go to the appellant's house. There was undisputed evidence that thereafter the appellant and the complainer were together for some time in the appellant's house. Later, the complainer was found to have sustained injuries to her head and body. Blood of the complainer was found on the person of the appellant.
4. Difficulties in the Crown case emerged in the course of the medical evidence. The Crown led two medical witnesses. The first witness, Dr. Fernie, said that from an examination of the complainer he had concluded that she had been assaulted. The second witness, Mr. Watt, a consultant surgeon, said that the most serious injuries sustained by the complainer could have been caused by her falling down a flight of stairs.
5. The jury therefore had to choose between two incompatible lines of medical evidence. It was accepted by the advocate depute that if the jury were to prefer the evidence of Mr. Watt, they would be bound to acquit.
6. Corroboration was therefore a vital issue. The sheriff's directions to the jury on that question were as follows:

"Now, the second test that the Crown have to pass, ladies and gentlemen, is that to establish guilt there must be reliable evidence supporting the Crown case from more than one source and that is what we lawyers call corroboration. It doesn't mean, ladies and gentlemen, that each item of evidence must be spoken to by more than one witness. It really means that you cannot convict except on the evidence from two or more separate sources which implicate Mr. Sweet beyond reasonable doubt as the perpetrator of the crime with which he has been charged. The kind of evidence, ladies and gentlemen, could be two witnesses speaking to one incident or one witness plus supporting circumstances. In this particular case, ladies and gentlemen, the question of corroboration is not a matter which you need to concern yourself with. The Crown have passed that test. As Mr. Most said to you yesterday afternoon, if they hadn't passed that test I wouldn't be speaking to you this morning quite bluntly. It would have been a matter which would have been dealt with outwith your presence as a matter of law so you don't need to worry yourselves about corroboration."

In giving this direction the sheriff, although no doubt concerned mainly with the question of sufficiency, also introduced the question of the reliability of the evidence that was required to establish guilt. This is the direction complained of.

7. Having given that direction, the sheriff continued as follows:

"Ladies and gentlemen, the case against Mr. Sweet depends on several strands of evidence. It is for you and only you to say at the end of that evidence what the total sum and effect of the evidence is. It is for you and only you to judge the credibility of the witnesses, taking into account their demeanour, their appearance in the witness box and the evidence they have given to you."

In giving this additional direction the sheriff raised the question of the credibility of the witnesses, but not their reliability.

8. Since the conflict in the evidence was a conflict between two respectable medical witnesses, it would seem that problems of credibility were unlikely to arise in relation to the medical evidence: but on the other hand, since the medical witnesses were at odds, the question of reliability was plainly vital.
9. We should add that at a later stage in the charge the sheriff said the following:

"Finally, ladies and gentlemen, in this general part in conclusion what do you require? You require a completed pattern of evidence from more than one source which you find credible, reliable and of sufficient weight and which satisfies you beyond reasonable doubt as to the guilt of Mr. Sweet. Your verdict, ladies and gentlemen, must be based on the evidence and reasonable inferences from it. You must not speculate. You have a duty to acquit, ladies and gentlemen, if any piece of evidence, even if not believed or wholly believed, casts a reasonable doubt on the Crown case."

The advocate depute relied on this direction.

10. Counsel for the appellant made the straightforward submission that the first passage that we have quoted was a clear misdirection. The sheriff in effect took away from the jury the question of corroboration in circumstances where, if they were to prefer Mr. Watt's evidence to that of Dr. Fernie, there would be no corroborated case.
11. The advocate depute accepted that that passage was unfortunately expressed and that the sheriff had confused the issue by mixing the question of reliability of evidence with that of sufficiency. He argued, however, that although the sheriff gave the clear impression in that passage that they did not have to concern themselves with corroboration, he had said at several other points in the charge that the interpretation of the evidence, and related matters, were matters for the jury alone. In particular he had given the standard direction to the effect that it was entirely for the jury to decide what weight to attach to the evidence of any witness and what inferences fell to be drawn from any facts that they found established. Moreover, in the third passage that we have quoted the sheriff had made clear exactly what the duty of the jury was. In these circumstances the advocate depute argued that the charge as a whole was sufficient, notwithstanding the infelicitous terms of the direction complained of.
12. In our opinion, this appeal must be allowed. In the direction complained of, the sheriff in effect directed the jury not to concern themselves with the question of corroboration. He implied that that was not an issue. In view of the state of the medical evidence, however, corroboration was a vital issue. If the jury were to prefer the evidence of Mr. Watt then, as the Crown has conceded, there was insufficient evidence to entitle them to convict. Furthermore, in the second direction which we have quoted the sheriff raised the question of the jury's function in regard to credibility, which was unlikely to be an issue in the case, and failed to raise with them the important question of reliability to which he had alluded in passing earlier on.
13. We do not accept the argument for the Crown that the necessary direction can be inferred from the other parts of the charge. The third direction that we have quoted, upon which the Crown principally relies, was given in the course of general directions unrelated to the circumstances of the case. However, on the facts of this particular case the jury's conclusions on the evidence were bound to raise in an acute form the issue of corroboration, whether for or against the Crown. In those circumstances the direction complained of constituted a clear misdirection and amounted to a miscarriage of justice.
14. We shall allow the appeal and quash the conviction and sentence.