Brian Newman v. Her Majesty’s Advocate [2016] HCJAC 46

Note of appeal against conviction:- On 8 May 2015, following a trial on indictment, the appellant was convicted of three charges of lewd and libidinous practices and behaviour (charges 2, 3 and 12), 4 charges of indecent assault (charges 4, 7, 8 and 10), a charge of attempted anal penetration (charge 5) and two charges of sodomy (charges 9 and 11) whilst he was employed as a care worker at a children’s home. The appellant was sentenced to 13 years imprisonment. The appellant appealed against his conviction on a number of grounds:- (1) the judge’s charge directed the jury to ignore the defence contention that the complainers were motivated by a desire for money; (2) the judge erred in rejecting the “no case to answer” submission in respect of charge 9; (3) the judge erred in directing the jury that they were entitled to use the evidence in respect of charge 9 as evidence which they could consider in relation to whether or not to apply the Moorov doctrine; (4) the judge misdirected the jury in relation to the concepts of speculation and reasonable inference from circumstantial evidence; (5) the judge’s directions did not make clear that conduct amounting to lewd and libidinous behaviour required to be deliberate; (6) the reference to the Crown not having “to prove anything about intention” caused confusion when the crime of assault was defined; and (7) the judge misdirected the jury in relation to the assessment of credibility and reliability in the context of the possible application of the Moorov doctrine. In relation to ground (1) the criticisms related to the manner in which the judge directed the jury in relation to witnesses denial that the allegations were based on monetary gain and that if they were not believed that did not make the opposite to be true. The court here considered that there was no merit in this ground of appeal. The court noted that it is a well recognised rule of evidence that if the jury does not accept a piece of evidence that did not mean the opposite was true and in the present case there was no evidence led upon which it could be said that the allegations were made up for financial gain. In relation to grounds (2 and 3) the only evidence in relation to charge 9 came from the complainer who spoke of being intoxicated, undressed, and being on the bed in the presence of the appellant, and waking up later with a “sore bum” and stating that “I don’t remember anything inappropriate” happening and it was submitted that for Moorov to apply it had to be a complete charge rather than an inferential charge which required support from other facts and circumstances. The court refused these grounds of appeal. The court considered that the evidence of the complainer, if accepted by the jury, entitled them to hold that he had been sodomised by the appellant. The court observed that just as identification by inference can found mutual corroboration so too can the inference that a crime has been committed be a basis for the application of the rule. The court considered that the jury were entitled, if they found the evidence of the complainer in charge 9 to be credible and reliable, to use that evidence with the evidence they found credible and reliable relating to charges 5 and/or 11 to allow them to apply the doctrine of mutual corroboration. In relation to ground (4) it was submitted that the directions given to he jury in relation to not speculating about the evidence were insufficient and the example given of a person going into a bank was unhelpful given the circumstances of the case. The court refused this ground of appeal and stated that the bank example given was appropriate and no criticisms could be made in relation to how the jury should approach the evidence and what inferences they could legitimately make from it. In relation to ground (5) it was submitted it was not made sufficiently clear to the jury that the lewd and libidinous conduct and behavior alleged in charges 2, 3 and 12 had to be deliberate rather than accidental. The court refused this ground of appeal and observed that the trial judge had made it clear that whilst the Crown were not required to prove an intention to corrupt, the conduct itself required to be deliberate. In relation to ground (6), and the reference by the trial judge to the Crown not having “to prove anything about intention”, in the context of directions on the crime of assault (charges 4, 5, 7, 8, 9, 10 and 11) were liable to confuse the jury as the directions given could have given them the impression that accidental touching could amount to an assault. The court refused this ground of appeal and stated that the directions were clear that an assault involved the deliberate attack upon the person of another with evil intent. In relation to ground (7) it was submitted that the trial judge had directed the jury that they should find the witnesses’ evidence credible and reliable. The court refused this ground of appeal and stated that a particular sentence of the directions should not be viewed in isolation and the charge must be read as a whole. The court pointed to various passages of the judge’s report in which it was made clear to the jury that it was only following them accepting a witness as credible and reliable before they could go on to consider whether mutual corroboration could apply.