C.R. v. Her Majesty’s Advocate [2022] HCJAC 25

Note of appeal against conviction:- The appellant was convicted after trial on indictment at the Sheriff Court of a number of charges of assault and indecency against his two foster daughters, JC and RC. Charges 2 and 3 were charges of lewd and libidinous behaviour over a period from November 1978 to November 1985 related to continuous course of serious sexual conduct towards JC, including penetrative abuse, before and after she was aged 12. Charge 5 involved lewd and libidinous behaviour towards RC by exposing himself on one occasion between August 1978 to June 1982. The trial judge directed the jury that the evidence of JC could be corroborated by the evidence of RC by the application of the doctrine of mutual corroboration and a further witness, PW, who spoke to admissions made by the appellant. The issue which arose in the appeal was whether the admissions were capable of corroborating the evidence of JC and whether the jury were properly directed on the issue. During the trial each complainer spoke to the appellant’s conduct towards them in accordance with what was specified in the relevant charges. JC spoke to admissions made by the appellant but was not corroborative of what JC said happened to her. RC gave evidence about a conversation with the appellant:- “Um, my recollection is he, I cannot say with 100 per cent ... I cannot, I wish I could say he said ‘Yes, I did it’, but I, I would be lying if I said that so I’m not going to say that. But what I remember is him saying ‘I couldn’t help myself but I’m not like those people you hear about on the radio, on the news.’ And that, to me, was an admission of his guilt”. RC then said in evidence about a further conversation involving the appellant over a speakerphone in relation to JC:- “…he said something ... he started to, I think he started to cry and said something like ‘I’ve been carrying this, I’ve been carrying this around with me too all of these years”. PW in evidence spoke to the same incident over the speakerphone and stated that:- “I know I did, and I have had to bear that all my life. I’ve had to live with that all my life.” In relation to the first ‘admission’ the trial judge directed the jury that they were:- “…entitled to treat what [RC] says was said by the accused as an admission to some sort of sexual abuse, even if the expression, sexual abuse was not used given what [RC] says that the accused said.” In relation to the second ‘admission’ over the speakerphone the judge directed the jury:- “…The evidence of [RC] and [PW] in that regard is evidence, if you accept it, of an admission to sexual abuse of [JC] and it is evidence which you would be entitled to treat as an admission by the accused as regards the activity in charges 2 and 3”. It was submitted on behalf of the appellant that the trial sheriff misdirected the jury as he should have directed them that there had to be evidence of the detail of the conduct in question having been put to the appellant, to which his answers were a response, before the answers could be regarded as an admission. It was submitted that the lack of specification in what had been put to the appellant prior to him responding was such that the directions given to the jury that the comments made by the appellant could be taken as admissions were at variance with what had been said by the court in other cases, including G. v. H.M.A. 2012 SLT 999. It was further submitted that the jury ought to have been given directions by the sheriff that the admissions, if made, were true and related to the sexual conduct libelled rather than the charges of assault. Here the court refused the appeal. The court considered that the inferences to be drawn from what was attributed to the appellant in what he said were matters for the jury and the trial sheriff had correctly directed them on the use that they could make of the comments attributed to him in their deliberations. The court considered that it was made clear to the jury that it was a matter for them to decide whether the comments were made by the appellant and, if so, whether the comments made constituted an admission to sexual abuse of JC and were such as to implicate the appellant in the crimes charged and afford corroboration of the evidence of JC. The court considered that the jury were entitled to conclude that the appellant was responding to an allegation of sexual abuse which constituted the abuse specified in charges 2 and 3 and that his responses amounted to admissions to that offending. The court sought to reiterate that if the impression in earlier authorities, including G. v. HMA, was that only unequivocal admissions in the clearest terms may provide corroboration of a crime, that is not consistent with long established authority and that to corroborate primary evidence evidence does not require to be more consistent with guilt than with innocence, rather,  it is sufficient if it is capable of providing support for or confirmation of the principal source of evidence on an essential fact. The court referred to the case of Greenshields v. H.M.A. 1989 SCCR 637 as authority for the proposition that an implied admission was capable of providing corroboration where the accused had stated:- “You don’t think I did it myself do you; but I’m telling you nothing about it until I see my lawyer” which was held to be capable of amounting to an implied admission to murder.