APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Clarke Lord Bonomy	[2010] HCJAC 97 Appeal No: XC665/09 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST CONVICTION by WILLIAM GRAHAM ROBERTSON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Targowski QC, C Smith; Bruce Macdonald & Co, Aberdeen

Respondent: Cherry QC, Advocate depute; Crown Agent

6 October 2010

Introduction

[1] On 9 September 2009 the appellant was convicted after trial at Aberdeen High Court of lewd and libidinous behaviour towards his younger sister L, and his partner's daughter P. He had given evidence at the trial, and two witnesses were led on his behalf. He appeals against conviction, contending that what he said during a video-taped interview with police officers on 17 December 2002 was a mixed statement, namely a statement "containing material which is capable of being both incriminatory and exculpatory": Morrison v HM Advocate 1990 JC 299 at page 312; McCutcheon v HM Advocate 2002 SCCR 101. He argues that the trial judge gave directions appropriate to an exculpatory statement; but as his statement was mixed, the directions constituted a material misdirection leading to a miscarriage of justice in that the jury had been prevented from treating what the appellant said during interview as evidence of the truth of what he said. While the statement related to Charge 3 (concerning P), it also had a bearing on Charges 1 and 2 (concerning L) in that conviction on those charges depended upon the application of the Moorov doctrine.

The relevant conviction

[2] The appellant was convicted inter alia of Charge 3 in the following terms:

"On various occasions between 1 June 1980 and 21 June 1988, both dates inclusive, at [two addresses in Aberdeenshire], you did use lewd, indecent and libidinous practices and behaviour towards P ... born 22 June 1976 ... and did enter her bedroom whilst she was asleep, place your hand under her covers, insert your finger into her private parts, masturbate in her presence, rub her private parts, insert a finger into her hinder parts, expose your private member to her and did masturbate in her presence to the emission of semen."

The directions challenged

[3] The appellant's criticism was directed at the following part of the trial judge's charge:

"Now in this case there was some evidence about prior statements. Let me deal firstly with the statement by the accused which is the, by that I mean the accused's 2002 police interview. A significant part of that interview was played on video in court and you have a transcript of that part of the interview with your papers. As the accused has given evidence what he said in the course of the interview is evidence only to show, that's a matter for you ladies and gentlemen, whether or not he has been consistent from an early stage. It's not evidence of the truth of what he said" [pages 6 to 7 of the charge].

[4] In his report to the court, the trial judge notes at page 6:

"I formed the view that the appellant's interview with the police was exculpatory in nature, rather than a mixed statement. That was the basis upon which I gave the direction in question ... My understanding was that the appellant maintained a consistent position throughout: he completely denied all the allegations."

Whether statement mixed or exculpatory

[5] During the trial, the Advocate depute led evidence of the police interview, playing the video-recording to the jury, commencing at the middle of page 11 of the transcript. In the course of the interview, various questions were put to the appellant about addresses at which he and his partner M had lived; his relationship with M and her daughter P; his employment; his lifestyle; and various life events. More specific questions were also put, focusing on the particular allegations of lewd and libidinous behaviour towards P.

[6] At no point during the interview did the appellant accept or admit that he had knowingly acted in the lewd and libidinous manner involving P suggested to him by the police officers. While he acknowledged living his life in a particular way, with certain habits, he did not admit to knowing involvement in any incident with P which would constitute or reflect the lewd and libidinous practices charged. He responded to some questions about particular lewd behaviour by denying that any such behaviour had occurred, and then adding, on a purely hypothetical basis, how for example it might have come about that P might have happened to see him naked. But he did not admit that an incident involving P reflecting the behaviour libelled in the charge had ever actually occurred: contrast with the circumstances in S v HM Advocate 2009 SCCR 815 paragraph [8].

[7] As was emphasised in McIntosh v HM Advocate 2003 SCCR 137 at paragraph [18]:

" ... the question [whether a statement is exculpatory or mixed] does not depend on the appellant's purpose in making the statement, nor on the Crown's purpose in leading evidence of it ... The test is whether the statement, considered objectively, was in any way incriminating in its effect."

Having carefully considered the transcript, it is our opinion that the appellant's statement was indeed exculpatory. This was not a case equivalent to a murder at a particular time and a particular location, where an accused's admission to being present at the locus at the relevant time was in the circumstances capable of being incriminatory (McIntosh v HM Advocate 2003 SCCR 137). Nor was this case similar to a drugs case in which an admission to being the occupant of the flat in which the drugs were found could be incriminatory. By contrast in the present case, while the appellant acknowledged living in family in the same home as the child P, and having certain personal habits and life practices (not involving P), he made no admissions capable of incriminating himself in relation to knowing participation in the sort of behaviour involving P libelled in the indictment: contrast with S v HM Advocate cit sup. It follows in our view that the trial judge was correct in giving directions appropriate to an exculpatory statement: Morrison v HM Advocate, cit sup; McCutcheon v HM Advocate, cit sup.

Whether any miscarriage of justice

[8] Even if the appellant's statement were (contrary to our view) to be regarded as mixed, the trial judge's directions did not in our opinion lead to a miscarriage of justice. The appellant gave evidence at the trial. It was a matter of agreement that nothing was said at the police interview which was not said at the trial, and that there were no inconsistencies between the evidence given at the trial and what the appellant said at interview. In similar circumstances, Lord Penrose observed in Thomson v HM Advocate 1998 SCCR 683:

"... [Defence counsel] was unable to point to any material distinction between the two bodies of evidence, or to any factor which might turn on the comparison of the contents of the two bodies of evidence and which might have significance beyond the issues of credibility and reliability focused by the trial judge in his charge. The Advocate depute informed us that in the cross-examination of the appellant some reference was made to the interview in a passage in which the appellant was pressed on whether he had used violence towards the complainer, and, in particular, had slapped her. The prosecutor's attempt to extend the scope of the admission failed. In the result, the ground of appeal amounts to a bald allegation of a technical misdirection which had no practical significance in the context of any real issue at the trial. We are of opinion that the appellant has failed to point to any miscarriage of justice in this case and that the appeal should be refused."

[9] Senior counsel for the appellant nevertheless submitted that Thomson could be distinguished from the present case, as the appellant's demeanour and reactions in the course of the police interview (which counsel advised were spontaneous and unrehearsed as the appellant had not known in advance why he had been invited to the police station) could be seen and heard on the video-recording. The trial judge's directions prevented the jury from taking those observations into account.

[10] In our view, the judge's directions did not so restrict the jury. The jury saw the video-recording, and while not able to take what was said in the course of the interview as evidence of the truth of what the appellant said, they were entitled to take into account the appellant's reactions, tone of voice, and body language when assessing whether he had been genuinely "consistent from an early stage". Nothing the judge said in his charge prevented the jury from so doing. Accordingly the ratio in Thomson is in our view applicable in the present case. In the result, even if the appellant's statement were (contrary to our view) to be regarded as a mixed statement, the appellant's submission amounts, in Lord Penrose's words, to no more than an "allegation of a technical misdirection which had no practical significance in the context of any real issue at the trial". Accordingly we are satisfied that, esto the statement was properly to be regarded as mixed, no miscarriage of justice occurred.

Decision

[11] For the reasons given above, we refuse the appeal.