APPEAL
COURT, HIGH COURT OF JUSTICIARY
|
Lord Osborne
Lord Kingarth
Lord Eassie
|
[2009] HCJAC 13
Appeal No. XC408/05
OPINION OF THE COURT
delivered by LORD OSBORNE
in
NOTE OF APPEAL AGAINST CONVICTION
by
J B
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
Act: Shead; Duthie; McClure Collins
Alt:
Di Rollo QC; Crown Agent:
3
February 2009
The
background circumstances
[1] On 21
April 2005, at the High Court at Glasgow, the appellant was convicted by a
majority verdict of the jury on charges (1), (2), (4), (5) and (6) of the
indictment which he faced, subject to certain amendments and deletions. The convictions recorded in terms of those
charges, were as follows:
"(1) On various occasions between 1 May 1970
and 27 February 1975, both dates inclusive, the precise dates being to the
prosecutor unknown, at (a location in Scotland) you did use lewd, libidinous
practices and behaviour towards JB or F, your sister, born 28 February 1963,
..... and did place your hand over her mouth, threaten to kill her, insert your
fingers into her private parts and attempt to force her to take your private
member into her mouth;
(2) On various occasions between 1 May 1970 and 27 February 1975,
both dates inclusive, the precise dates being to the prosecutor unknown, at (a
location in Scotland) you did instruct JB or F, your sister, born 28 February
1963......to enter your bed, force her to lie face down on said bed, place your
hand over her mouth, threaten to kill her and you did rape her;
(4) On various occasions between 17 September 1970 and
16 September 1972, both dates inclusive, the precise dates being to the
prosecutor unknown, at (a location in Scotland) you did use lewd, indecent and
libidinous practices and behaviour towards RB or D, your sister, born 17
September 1957.....then a girl of or above the age of 12 years and under the age
of 16 years and did enter her bedroom, expose your private member to her,
induce her to touch your private member and insert your fingers into her
private parts: CONTRARY to the Criminal
Law Amendment Act 1922, section 4(1);
(5) Between 17 September 1970 and 17 September 1972, both dates
inclusive, the precise date being to the prosecutor unknown, at (a location in
Scotland) you did assault RB or D, your sister, born 17 September 1957, ......and
did enter her bed in a state of undress, force her legs apart and attempt to
insert your private member into her private parts and you did thus attempt to
rape her;
(6) On various occasions between 18 January 1970 and 17 January
1976, both dates inclusive, the precise dates being to the prosecutor unknown,
at (a location in Scotland), you did use lewd, indecent and libidinous practices
and behaviour towards MB, your brother, born 18 January 1962.....and did expose
your private member to him and induce him to masturbate you, punch him on the
body, and legs, attempt to penetrate his hinder parts with your private member
and thus attempt to induce him to penetrate your hinder parts with his private
member".
[2] On 12 May 2005, the trial judge sentenced the
appellant to 11 years imprisonment in cumulo
in respect of charges (1), (2), (5) and (6), said period to date from 21 April 2005;
and to imprisonment for a period of 1 year in respect of charge (4),
said period to run consecutively to the aforesaid period. The Court also certified, in terms of
section 92(2) of the Sexual Offences Act 2003, that the appellant had been
convicted of the foregoing offences and that they were sexual offences to which
Part II of that Act applied.
[3] On 17 August 2005, the appellant lodged a Note of
Appeal against conviction and sentence, in which it was stated that his appeal
against conviction was on the following grounds:
"(a) It was oppressive to proceed to trial on
such stale charges after a very lengthy delay in reporting by the
complainers. In particular, the stale
charges were drafted with a very wide latitude of time in the indictment which
was excessive and unfair, such that a fair defence was not possible. In addition, the accused's mother, who would
have been an important defence witness was dead by the time of the trial. The defence's opportunity to trace and
recover contemporaneous records was lost.
Further and in any event, the trial judge erred in refusing to permit
the whole of a defence minute under section 275 of the Criminal Procedure (Scotland) Act 1995 as amended to
allow relevant evidence to be led before the jury. A copy of the minute is attached. The convictions were accordingly oppressive.
(b) Counsel's representation of the accused was defective. He did not adequately challenge the Crown's
principal witnesses of fact and permitted them to make statements adverse to
the appellant's interest without contradicting them with defence evidence which
was available. Further, counsel's speech
to the jury had the effect of removing the real defence from the jury. The witnesses of fact were cross-examined on
the basis that they were frank liars and had a financial, spiteful or other
malevolent motive to invent their allegations.
These were the appellant's instructions.
In his speech to the jury, counsel invited the jury to find that the
witnesses to fact were not liars, but instead were honest and had persuaded
themselves of the truth of their false allegations. This was the subject of comment by the trial
judge. Cumulatively, these errors
amounted to defective representation of the appellant by counsel".
[4] In
view of the nature of the allegations made in ground of appeal (b), senior
counsel who represented the appellant at his trial was invited to make such
comments as he thought fit on the terms of the ground of appeal. His response, so far as material to this
appeal was in the following terms:
".....Mr B's accusers were
his sisters.....and his brother..... Each
gave clear ....accounts against him; he in
turn, as well as denying the allegations, made charges against them of various
kinds of improper conduct. These are set
out in the section 275 application along with other matters touching on
credibility as distinct from wrongful conduct.
......I believe I knew Mr B's case well and fully understood his
instructions. I also believe that I
cross examined thoroughly and vigorously (though I hope not aggressively or
cruelly).
Not all of the
section 275 material was allowed. I
believe I put all permitted points to the witnesses.
I do not know what is
being thought of when it is said that I did not use available evidence to
contradict the Crown witnesses.
It is right to say that in
my address to the jury my approach differed from the suggestions I put in my
questions in cross examination. The
older sister and the brother were impressive witnesses, not least because of
their moderation and their insistence that they still loved ....or till recently
had loved .....the appellant. The other
sister was also a formidable obstacle for the defence, even if not quite up to
the standard of [her sister and brother].
By the time I spoke to the
jury about the evidence I was of the view that I would do more harm than good
to the defence case if I went over all the challenges made when the sisters and
brother were bring crossed. The jury, by
the time of speeches had heard both sides of the story. The case had moved on since its start when
the ....Crown witnesses were in the box.
As it turned out I think
the way I crossed - deliberate lies - and the way in which I put it to the jury
- mistake - gave Mr B two bites of the cherry. This was the way the trial judge put it in
his charge. He reminded the jury of how
I had put matters in cross and of the rather different approach (I think he
said) I had adopted in my speech.
There was no suggestion of
criticism in the judge's words and above all no unfairness to Mr B.
The important point,
however, is that no one could have been in any doubt that the case I was making
for Mr B, in cross and in speaking to the jury, put his credibility before
the jury as preferable to that of his accusers.
.........
At no time did he
criticise or suggest that I was not following or had not understood his
instructions or any of the information he had supplied.
On the contrary he
expressed complete satisfaction and showered me with compliments. I particularly remember his flattering words
when I finished my speech to the jury.
I do have to suggest that
the criticism he now makes of me is an after-thought".
Submissions
of the appellant
[5] At the
outset, counsel made clear that he did not intend to argue the first part of
ground of appeal (a). Only the point
raised in the last three sentences of that ground would be advanced. As regards ground of appeal (b), counsel
explained that the focus would be on the contrast between the nature of the
cross examination of crucial witnesses and senior counsel's speech to the
jury. He intended to make submissions
concerning ground (b) first.
[6] It had
to be explained that the Crown case had depended on the application of the Moorov doctrine as between the
allegations concerning the several complainers.
At the trial, the appellant himself had given evidence and defence
evidence had been led. Serious issues
arose concerning the character of the complainers and other matters. Expert evidence had been led from
Professor Anthony Busuttil. The
trial judge had invited the jury to consider the charges in two groups. The first group consisted in charge (2), of
rape and charge (5), one of attempted rape. The second group consisted in the charges of
lewd practices, charges (1), (4) and (6).
[7] There
had been no dispute whatever concerning the instructions given by the appellant
to senior counsel. They were to the
effect that the complainers were lying in making their allegations against the
appellant. That was acknowledged by
senior counsel in the letter, dated 2
September 2005, which he had written in response to the invitation to
comment on the grounds of appeal, No.13 of the appeal process. In this connection counsel referred to the
trial judge's report, page 19 and the terms of his charge to the jury between
pages 52 and 57.
[8] The
appellant's submission was that his case had been undermined by the volte face
performed by senior counsel. It was accepted that there had been a differential
approach; the possible effect of drink
and drug abuse on the reliability of the complainer MB had been raised. The other reliability issue was based upon
the evidence of Professor Busuttil concerning the evidence of the
complainer JB or F. He had stated that
if she had been repeatedly raped, the jury would have expected to hear of signs
of physical abuse. There was no
evidential basis to show that the evidence of the complainer MB could have been
tainted by drink or drugs.
[9] While,
no doubt, counsel always had some degree of discretion in the presentation of a
client's case, here the cross examination of the complainers had been on a
particular footing, but the defence speech to the jury was on quite a different
one. The background included the facts
that the appellant's own evidence had been that the evidence of the complainers
against him was perjured. That position
had been departed from by senior counsel in his speech to the jury. The trial judge had commented on these
matters between pages 19 and 21 of his Report. The narrative of the speech of senior counsel
to the jury had been transcribed and, so far as material, could be found
between pages 929 and 935 of the transcript.
[10] The
reality was that senior counsel had been under a professional obligation to
conduct the case according to the instructions of the appellant, however silly
or counter-productive, or otherwise unsatisfactory those instructions might
have been. Of course, if the
instructions were to the effect that the crucial witnesses were lying, issues
of reliability could also be explored.
Here, in one sense, the appellant's defence was before the jury, but
that was not enough. While senior
counsel had not been unsubtle, nevertheless he did depart from the instructed
basis of the defence. What he had
implied and indeed expressed to the jury was what might be called "false memory
syndrome", for which there had been no evidential basis whatsoever. Senior counsel had even acknowledged before
the jury that the crucial witnesses had been doing their best to tell the
truth. Thus, the framing of the speech
to the jury had been designed to distance the defence from the appellant's own
evidence, which was, in effect, disowned.
It was not necessary for the Court to say that, if the speech had been
couched in different terms, the result would have been different. That question could not be gone into. The real question was whether the appellant
had received a fair trial. The
submission was that he had not. For
support for this submission, counsel relied upon Anderson v HM Advocate 1996 J.C.29; 1996
S.C.C.R.114 at pages 120, 121, 123, 125 to 128 and 131 to 132 of the SCCR
report. These passages made it clear
that the duty of counsel conducting a criminal defence was to follow the
instructions which had been given; the
tactics to be adopted in undertaking that task were a matter for counsel. Even if the focus was not on the instructions
themselves, serious damage had been done by the defence by the adoption of the
different approach taken in the speech to the jury. Counsel also drew our attention to Garrow v HM Advocate 2000 S.C.C.R.772, Hemphill v HM Advocate
2001 S.C.C.R.361, A.J.E. v HM Advocate 2002 J.C.215; 2002 S.C.C.R.341 at paragraphs 6 to 8
and 11, Winter v HM Advocate 2002 S.C.C.R.720, at paragraphs 35 and 48, Burzala v HM Advocate 2008 S.L.T.61 at paragraphs 33, 35 and 41 and Grant v HM Advocate 2006 S.C.C.R.365.
[11] On
account of the circumstances described there had been a miscarriage of justice.
It was plain that the trial judge had been surprised at the course which events
had taken, in consequence of which he gave certain directions to the jury, at
page 52 to 58 of the transcript of the charge. However, what he said there could not have
had the effect of retrieving the situation and avoiding the damaging
consequences to the appellant of senior counsel's actions.
[12] Counsel
for the appellant then turned to support that part of ground of
appeal (a), which was to be maintained.
The criticism was that the trial judge had erred in refusing to allow
the whole of a minute on behalf of the appellant under section 275 of the
Criminal Procedure (Scotland) Act 1995 and thus to allow relevant evidence to
be led before the jury. The trial judge
had explained the reasons for his decision in this regard between pages 8
and 18 of his Report. In connection with
this submission counsel drew our attention to Moir v HM Advocate 2007
J.C.131; 2007 S.C.C.R.149; also 2005 J.C.102; 2004 S.C.C.R.658; particularly paragraphs 16 to 39 of the
former report. He also relied on HM Advocate v DS 2007 S.C.C.R.222, particularly paragraphs 26, 28, 44 to 46
and 70 to 78. It was evident that the
word "behaviour" in section 274(1)(c) of the 1995 Act did not embrace
statements. Counsel accepted that the
statutory provisions were not straightforward to interpret. He pointed out that the trial judge had not
had the benefit of access to Moir v HM Advocate 2007 J.C.131; 2007 S.C.C.R.149 and HM Advocate v DS at
the time when he made the relevant decision.
[13] Counsel
went on to draw our attention to certain other authorities which bore upon the
approach which a trial judge should take in relation to an application under
section 275 of the 1995 Act. These included
Dunnigan v HM Advocate 2006 S.C.C.R.398.
In that case, the discretionary nature of the exercise which the trial
judge had to conduct had been emphasised at paragraph 14. However, there had been no argument addressed
to the Court regarding the test to be applied.
In Wright v HM Advocate 2005 S.C.C.R.780, again the
discretionary nature of the exercise had been emphasised in paragraph 8 of
the Opinion of the Court. Counsel said
that the foregoing cases ran against the submission which he was making. That submission was supported by Tant v HM Advocate 2003 S.C.C.R.506, a decision under the old
statutory provisions. In
paragraph 17 of that case the Court had heard an argument to the effect
that the issue was a matter of law rather than discretion. The issue, after trial, was, of course,
whether there had been a miscarriage of justice. Counsel also relied on Love v HM Advocate
1999 S.C.C.R.783, again a decision under the old statutory provisions. It was accepted that the wording of those
provisions differed in certain material respects from the current provisions. Counsel said that he was asking the Court to
differ from the decisions in Wright v
HM Advocate and Dunnigan v HM Advocate,
where the issue in question had not been argued. It might be appropriate to convene a larger
Court to examine the matter. Counsel
contended that the questions before the Court were (1) was the evidence
concerned admissible at common law; (2)
ought that evidence to have been admitted under the scheme contained in
sections 274 and 275 of the 1995 Act?
[14] Counsel
then proceeded to examine the trial judge's decision in detail. As regards paragraph (b) of the minute,
the last sentence related to false allegations;
the making of such allegations should be regarded as relevant. The trial judge was wrong to exclude that
material. As regards paragraph (m),
its content related to sexual matters.
The trial judge had not regarded them as relevant to establishing the
guilt or otherwise of the appellant. In
that respect he had been in error.
Paragraph (q) of the minute related to allegations of violence against
the first named complainer towards the appellant and others. It was submitted that that might have shown a
disposition on her part of hostility. It
should have been allowed as being potentially relevant. As regards paragraph (r), its contents
reflected on the honesty of the first and second named complainers. The boasting referred to might be a statement
and therefore outwith the scope of the legislation. As regards paragraph (c), it again related to
the making of false allegations, this time by the second named complainer. That material was relevant and should have
been allowed. As regards paragraph (f),
counsel accepted the drafting of this part of the minute was poor. Turning to paragraph (n), once again it
related to false allegations made by the second named complainer. It should have been allowed. The same was true of the contents of
paragraph (o). In relation to
paragraph (s) there were several parts.
Counsel said that he could not support what was said in the last
sentence of this paragraph. It was accepted
that some part of it related to statements by the third named complainer. However, with these qualifications the
paragraph should have been allowed.
[15] What
mattered was that the appellant had lost the opportunity of challenging the
evidence of the complainers in certain respects. In all the circumstances, a miscarriage of
justice had occurred and the appeal ought to be allowed.
The
submissions of the Crown
[16] Dealing
first with the issue of allegedly defective representation, the Advocate depute
submitted that the Court ought to consider carefully what the central issues in
the trial had been and have regard to the nature of the defence. The three complainers had been making
allegations of sexual abuse in the period between 1970 and 1976. The position of the appellant had been that
these allegations were completely false.
While it was true that senior counsel in his speech to the jury had
referred to a lack of intention to deceive in relation to the complainers, it
was necessary to look carefully at the cross examination of JB or F and
RB or D; only rarely were "lies"
mentioned. For the appellant to
characterise what was done as a failure to present his defence was wrong. The defence was to the effect that the Crown
witnesses were to be discredited. Senior
counsel for the appellant had endeavoured to achieve that. While what senior counsel for the appellant
had said at page 933 of the transcript of the proceedings could not be
gainsaid, he had advanced much material to support the appellant's
defence. The true issue had been whether
the evidence of the complainers was true or false. It was commonplace for counsel in a trial not
necessarily to agree with their client's own view of the reason why the
evidence given was false. Senior counsel
at the trial had examined all three of the complainers carefully and at length,
although he had not got very far in disturbing those witnesses' evidence. In his speech to the jury he had concentrated
on the issue of the truth or falsity of the evidence; it was submitted that broadly speaking, the
speech had mirrored cross examination.
[17] The
Advocate depute then drew our attention in detail to passages in the cross
examination of the complainers. In the
case of JB or F, senior counsel had put to her in a variety of ways the
suggestion that her evidence was false, including the suggestion that it was, a
"tissue of lies". However, the
suggestion had also been made that it was clearly wrong or confused. The important point was that there was no
suggestion that senior counsel had failed to put relevant material to the
witness. There was no allegation that
there had been inadequate preparation for the trial. So far as the complainer RB or D was
concerned, there had been no suggestion of lying in cross examination. It had been suggested that her mind had been
poisoned, that what she said had happened had not, and that nothing sinister
had occurred.
[18] The
position had been that the complainers had been impressive witnesses; counsel had had to decide how to present the
case against that background. Plainly,
it would not have been helpful to characterise the complainers as liars
alone. Senior counsel had been quite
entitled to do what he did and to suggest that their evidence could not be
relied upon. The Advocate depute had
been unable to find any reported case which was comparable to the present
one. However, he drew our attention to
certain dicta in McBrearty v HM Advocate. In paragraph 60, the Lord Justice Clerk
recognised the importance of the Appeal Court respecting decisions made
by counsel in the course of and under the pressure that existed during a
trial. Furthermore, in
paragraphs 34-36 there were helpful observations on the scope of an Anderson appeal. It was submitted that here the jury had had
the defence put before them. The manner
of the cross-examination of Crown witnesses was a matter for the discretion of
counsel; so was the formulation of the
terms of the defence speech to the jury.
On behalf of the appellant it had been asserted that the appellant's
instructions were to the effect that the complainers were liars. However, it was not obvious that those
instructions were that they should be challenged only as liars. The instructions must have been that the
complainers' evidence should not be accepted.
However, the Advocate depute accepted that, in evidence, the appellant
had said that the complainers were lying.
The background included the fact that the trial judge had given
directions to the jury regarding the assessment of the credibility of Crown
witnesses. So, if it were erroneous to
say that the defence case had been presented to the jury, in fact it was before
the jury. If that were so, the Anderson case must fail. Putting the matter in another way, the
appellant received a fair trial. Full
reasons had been put before the jury by senior counsel for the appellant as to
why the jury ought to reject the Crown's case.
[19] The
Advocate depute then went on to deal with that part of ground of
appeal (a) which had been supported.
He submitted that, in dealing with an application under section 275
of the 1995 Act, the Court was, at least in part, exercising a discretion. Section 275(1) contained the word
"may". In these circumstances only the
limited grounds of attack available against a discretionary decision were
available to the appellant. It was of no
assistance to examine earlier cases decided under the older legislation of
which the wording had been different. In
this connection, reliance was placed on Moir
v HM Advocate 2005
J.C.102; 2004 S.C.C.R.658.
[20] In this
case the application under section 275 had involved twenty different heads of
material. Eleven were allowed and nine
rejected in part or in whole. The trial
judge had made a careful and considered decision. No serious attack had been mounted against
his exercise of his discretion.
[21] Certain
recent cases concerned with the wrongful allowance or rejection of evidence
were helpful. In Dye v HM Advocate
[2008] HCJAC 40, it was accepted that an erroneous decision had been made
by the sheriff in terms of section 275 of the 1995 Act. What was important to note was that that did
not determine the fate of the appeal;
the question which then arose was whether the refusal of the sheriff to
allow questioning of the complainers about certain matters had resulted in a
miscarriage of justice. Thus, in the
present case, even if counsel for the appellant had been able to show that the
decision of the trial judge in terms of the application under section 275 had
been, to any extent, flawed, it would still be necessary for the appellant to
show that the error concerned had resulted in a miscarriage of justice. That had not been done.
[22] In that
connection the Advocate depute relied upon McInnes
v HM Advocate 2008
S.L.T.941. That case had been concerned
with the consequences of non-disclosure.
At paragraph 20 in the Opinion of the Court delivered by the Lord
Justice General, the test propounded was whether, in consequence of the
failure, there had been created a "real risk of prejudice to the defence". So, if this point were to be reached in the
present case, that was the test that had to be applied. Looking at the circumstances of this case,
and of the three complainers, there had been no real risk of prejudice to the
appellant. The case of Moir v HM Advocate 2007 S.C.C.R.159;
2007 J.C.131, was not of assistance.
The Court had not considered the terms of any specific test. There had been no argument regarding tests,
as appeared from paragraphs 27 and 35.
As regards the detailed criticisms made in the present case of the
decision of the trial judge on the application under section 275 of the 1995
Act, the Advocate depute confined himself to submitting that nothing excluded
from evidence was of any great significance.
In relation to the matters which were excluded, in any event, warnings
might well have required to have been given to the witnesses concerning
possible criminal offences. In all the
circumstances the appeal should be refused.
The decision
[23] We
shall follow the order of submissions adopted by counsel for the appellant and
deal with ground of appeal (b) in the first instance. It will be noted that, in this ground of
appeal, it is alleged that senior counsel for the appellant "did not adequately
challenge the Crown's principal witnesses of fact and permitted them to make
statements adverse to the appellant's interest without contradicting them with
defence evidence, which was available".
Counsel for the appellant did not support that part of this ground of
appeal. It was acknowledged that the
cross examination of the complainers had been extensive and thorough; no instance of a material failure to cross
examine those witnesses appropriately was identified. The focus of submission in relation to this
ground of appeal was the contrast between, on the one hand, the cross
examination of the complainers and the evidence given by the appellant, and, on
the other hand, the presentation of the case by senior counsel for the
appellant in his speech to the jury.
[24] The
starting point in a consideration of this aspect of the case may be thought to
be the position of the appellant himself taken up in the witness box. There is no transcript of his evidence before
the Court, but we have the trial judge's account of his evidence set out at
pages 57 to 58 of his charge to the jury;
we also have his account of the appellant's evidence at page 20 of
his Report to this Court. In his charge,
he said to the jury:
"The accused's position on
the whole matter when he was in the witness box was that all the allegations
against him were, in his own words, malicious falsehoods and that J, R and M
had perjured themselves - that is, they had come into Court and deliberately
told lies on oath in the witness box. As
I pointed out yesterday, the accused comprehensively denies any wrongdoing
whatsoever and you must consider his evidence very carefully".
As regards the cross-examination of the complainers,
it is fair to say that the position taken up by senior counsel reflected the
appellant's own position, but his challenge to their evidence was more
extensive, involving as it did an attack on their reliability as
witnesses. In this connection as regards
J B or F, we refer to pages 77, 182, 143, 175, 184, 185, 196 and 197
of the transcript. At page 175 it was
put to this complainer that her allegations were "just one tissue of lies". At page 197 it was put to her: "That you make
the charges you do against him through your evidence as a matter of malevolence
and spite in the sense that there is not a word of truth in your allegations". As regards R B or D, the matter was
dealt with somewhat less directly in cross-examination. We refer to pages 264, 287, 297, 301,
315, 319 and 345 to 346 of the transcript.
At page 297, it was suggested to this complainer that the reason why she
had come forward with the allegations that she had was that she had allowed her
mind to be poisoned against the appellant.
In substance, it was being put to this complainer that she had told lies
out of malice towards the appellant. So
far as M B was concerned, it was put to him in cross-examination at page
463 that his evidence was false and that no abuse had occurred. At page 468 it was suggested to this
complainer that there had been a "touch of spite, malice", or even of revenge
in his motivation for giving evidence.
[25] Against
the foregoing material, we conclude that the position of the appellant, which
must have been reflected in his instructions to his legal advisers, was that
the complainers, in making the allegations against him that formed the
foundation of the indictment, had been lying.
It appears that a number of reasons were suggested for this, as is
reflected in the section 275 application lodged on his behalf, much of
which was allowed. In that situation, it
is now necessary to consider the terms of senior counsel's submissions to the
jury; the crucial passage commences at
page 932 of the transcript. Having
commented on the ages of the complainers and of the appellant at the material
time, senior counsel proceeded:
"To that extent it may
well be you may think that his memory of events may be somewhat more reliable
than that of his accusers but I do not rise to any bait of arguing before you,
if any bait indeed is dangled in front of me, of arguing before you that the
complainers come into this place and have spoken deliberately lying words to
you. Certainly the essence of what I
argue before you now and continue during all the time I stand in front of you
to do so and you may think the essence of the way I tried to put the case for
Mr B in terms of any questions I put, either in cross-examination or in
examination-in-chief, the essence of it all is that of course I challenge on
JB's behalf virtually every single word spoken by the complaining members of
his family against him but do please follow me, ladies and gentlemen, if you
would be so kind in what I try to say to you.
I challenge the reliability of the essential parts of what the
complaining members of his family say to you.
I do not suggest, never really did suggest, you may think, except
perhaps occasionally in trying to test evidence, that what they were doing was
telling lies, deliberate lies".
Later, at pages 934-935 of the transcript he said:
"What I am really trying
to say I think is that I have no doubt the two women and M will persuade
themselves and genuinely believe that what they have said to you from the
witness box is true..... I approach this
case and invite you to do so on the basis that those three complaining members
of the family probably do themselves genuinely believe, genuinely believe, that
what they said happened did".
Two points may be made about the passages we have
quoted. First, senior counsel's
characterisation of his cross-examination of the complainers cannot be
reconciled with the reality of that cross examination, as it appears from the
transcript of it. Secondly, in adopting
the position that he did, particularly at page 933 of the transcript, that his
contention was not that the complainers had been telling lies, senior counsel,
in effect abandoned the stance taken up by the appellant in the witness box
which must have been the foundation of his instructions. The adoption of that course, we consider,
must necessarily have been particularly damaging and prejudicial to the
position of the appellant, since he had given evidence. What, in effect, was being said to the jury
was that the position taken up by the appellant himself in his evidence was
insupportable.
[26] Against
this background, we now consider the criteria which have to be applied in the
circumstances of this case. In Anderson v HM Advocate are to be found certain passages which emphasise
the importance of the instructions of an accused person in the context of their
representation. At page 40 (J.C.); 128
(S.C.C.R.), the Lord Justice General, after quoting a passage from the Opinion
of the Court in the New Zealand case of R
v McLoughlin said:
"We find in this passage a
useful statement of the duty of counsel in such circumstances and of the
application of the principle that the accused is entitled to a fair trial. No attempt was made to assess in qualitative
terms the flagrancy or gravity of the barrister's conduct or the degree of his incompetence. What was examined was the effect which his
conduct had on the appellant's right to a fair trial. As to what was said here about the duty of
counsel, there may at first sight seem to be a conflict between the statement
that counsel has no right to disregard his instructions and to conduct the case
as he himself thinks best and Lord President Inglis' statement in Batchelor v Pattison and Mackersy that the legal right of counsel is to conduct
the cause without any regard to the wishes of his client, so long as his
mandate is unrecalled. But we consider
that this description of counsel's duty is a sound one in the context of the
conduct by counsel of the defence of his client in a criminal trial. Counsel who represents an accused person in a
criminal trial must first obtain instructions from his client about his
intended defence. Just as counsel may
not tender a plea of guilty unless he has instructions to do so on his client's
behalf, so also he may not conduct a defence for a client who pleads not guilty
which is contrary to the instructions which he has received as to the basic
nature of it. His duty is to act on the
instructions which he has been given.
How he acts on those instructions is a matter for him, as he is entitled
to exercise his own discretion and judgement in the conduct of the
defence. What he cannot do is deprive
his client of his intended defence by acting contrary to his instructions in
this matter".
The importance of instructions was also emphasised in Winter v HM Advocate in paragraph 35, where the Lord Justice Clerk
observed:
"To succeed in this appeal
the appellant must show not only that the defence instructed was not put
forward by counsel, but that the failure to do so was such that the appellant
did not receive a fair trial (E v HM Advocate)".
In McBrearty v
HM Advocate at paragraphs 34 to
36, the Lord Justice Clerk said:
"Anderson (J.M.)
v HM Advocate draws the distinction
between a failure properly to present a defence and a judgement as to the
conduct of the defence at the trial made in the exercise of professional
discretion. In general, a complete
failure to put forward an important line of defence, as for example in Garrow v HM Advocate, Hemphill v HM Advocate,
E v HM Advocate and Winter
v HM Advocate will found a
relevant ground of appeal, whereas a judgment made as to manner of presentation
of such a line of defence will not (Anderson).
.......
In some cases, it may be
difficult to draw the dividing line between a judgement made by counsel in the
presentation of the defence and the failure properly to present it at all. But even in the area of professional
judgement counsel may make a decision that is so absurd as to fly in the face
of reason. In such a case, in our view,
the Court is entitled to hold that the defence was not properly conducted (McIntyre v HM Advocate, Lord Coulsfield at page 388). To hold otherwise, in pursuit of a rigid
legalistic distinction, would be to lose sight of the underlying question in
every Anderson appeal, namely whether
the accused was given a fair trial (cf. E
v HM Advocate, Lord Justice
Clerk Gill at paragraphs 8-10)".
[27] Reverting
to the circumstances of this case, in the context of a prosecution for sexual
offences such as this, the credibility of the complainers is plainly of
fundamental importance. Some accused may
only be able to say that the allegations against them are, for whatever reason,
untrue. But the position taken up by the
appellant here, reflected in the instructions which he gave, was to the effect
that the complainers were deliberately giving false evidence, motivated essentially
by malevolence and spite. A number of
reasons were suggested for this. That position was indeed reflected in their
cross examination, along with a variety of other challenges to their
credibility and reliability. We regard
those particular instructions by the appellant as of crucial importance in this
case. However, when, after the hearing
of the evidence, the appellant's case was presented to the jury by senior
counsel, he abandoned that position and proceeded to present the case upon a
different basis, eschewing the idea that the complainers had been giving
deliberately false evidence. In so far
as that alternative basis appears to suggest some kind of false memory
syndrome, there was, it seems, no evidential basis for it. In this situation, we are driven to conclude
that the taking of that course represented a material departure from the
appellant's instructions as to the basic nature of his defence and deprived him
of his fundamental right to a fair trial.
[28] In his Report
to this Court, the trial judge, in relation to this ground of appeal, offered
the comment
".....that I do not think
that counsel's speech had the effect of removing from the jury 'the real
defence' that the witnesses were liars.
I reminded the jury that that defence had been put in the cross
examination of each complainer .... The appellant himself had put that defence
forward in his evidence: he said that the allegations against him were
malicious falsehoods and the complainers had perjured themselves. I also reminded the jury of that...... Thus in the charge the jury were reminded not
only of the way the defence had been presented in the closing speech, but also
of the lines on which the witnesses had been cross examined ....and of the
assertions by the appellant that the complainers were liars. The situation was indeed unusual but it
appears to me that it cannot be maintained that counsel's speech had the effect
of preventing the jury from deciding that the complainers' evidence should be
rejected on the ground that they had been lying. In my respectful opinion the jury, having
listened to the charge, could not have been in any doubt that they were
entitled to consider not only whether the complainers were honest witnesses who
had persuaded themselves of the truth of their false allegations but also
whether the complainers were, in the words of the Note of Appeal, 'frank liars
and had a financial, spiteful or other malevolent motive to invent their
allegations'. I consider that the effect
of the speech and the charge was to provide the jury with two different reasons
for rejecting the complainers' evidence".
While the trial judge, no doubt appreciating the
difficulty that senior counsel's change of front had created, in the manner
which he explains, attempted to keep all lines of defence open for
consideration by the jury, in our view, his endeavour did not obviate the
miscarriage of justice which we consider occurred. The fact of the matter was that, in the
passages from senior counsel's speech which we have quoted, the jury were told
that the line of defence clearly expressed in the appellant's own instructions
and evidence was being abandoned. That
must have reflected most adversely upon the appellant and his evidence in the
minds of the jurors, in our opinion. We
do not think that the consequences of that step were capable of being retrieved
by the observations of the trial judge in his charge to the jury. We consider that irretrievable damage was
done to the position of the appellant, in consequence of which his trial was
not fair. For all these reasons, we are
minded to quash his convictions.
[29] Having
reached the conclusion we have on ground of appeal (b), it is unnecessary
for us to make a decision in relation to ground (a), in so far as that ground
was supported in argument. However,
suffice it to say that, having considered the careful treatment by the trial
judge of the application of the appellant under section 275 of the 1995 Act, we
can detect no flaw in his approach.
[30] In the
foregoing circumstances, the case will now require to be put out for a hearing
to consider any application that the Crown may wish to make for a grant of
authority to bring a new prosecution in accordance with sections 118(1)(c) and
119 of the 1995 Act.
