Walter Masocha v. Her Majesty’s Advocate [2016] HCJAC 15

Note of appeal against conviction:- On 27 April 2015, at Falkirk Sheriff Court, the appellant was convicted after trial on indictment of a contravention of section 3 of the Sexual Offences (Scotland) Act 2009, namely, the sexual assault of JG together with a contravention of section 30 of the Sexual Offences (Scotland) Act 2009, namely, engaging in sexual activity with or towards a child, PC, who had attained the age of 13 years but had not attained the age of 16 years. On 16 June 2015 the appellant was sentenced to a Community Payback Order including 250 hours of unpaid work. The appellant appealed against his conviction on various grounds relating to alleged deficiencies in the trial sheriff’s charge to the jury:- (1) that the sheriff had erred in failing to direct the jury on the credibility of the two complainers and their motives for the appellant being convicted and collusion between them including an admission by PC that she had committed perjury in relation to a central issue in the case; (2) that the sheriff had misdirected the jury by failing to direct them in relation to the prejudicial evidence given by JG about the finances of the appellant and the Church of which he was the spiritual leader; (3) that the sheriff had misdirected the jury in failing to give them directions in relation to the evidential value of prior statements used to undermine the credibility and reliability of both complainers; (4) that the sheriff had misdirected the jury in failing to tell them about the evidential value of the prior inconsistent statements made by TG and GG who were complainers in relation to charges withdrawn by the Crown; and (5) that the sheriff had failed to give adequate directions on the application of mutual corroboration between the two charges. Here the court allowed the appeal in relation to ground 4. In relation to the criticisms of the sheriff’s charge in connection with the credibility and reliability of witnesses the court stated that it is important for any trial sheriff to ensure that they do not trespass into the jury’s province. In the present case both the Crown and the defence made submissions in relation to the credibility and reliability of the witnesses in the case and there was no need for the trial sheriff to return to these in his charge. In relation to the third ground the witness indicated in her evidence that what she had previously said in the form of e-mails was how she felt at the relevant time and as such there was no requirement for the sheriff to give any specific directions as the court did not view the contents of the e-mails as amounting to prior statements which were inconsistent with the evidence of the witness in court. In relation to the fourth ground of appeal it was conceded by the Crown that the sheriff ought to have directed the jury about the evidential value of the prior inconsistent statements made by TG and GG. The court considered that the misdirection was material and had resulted in a miscarriage of justice. The court considered that the directions given about telling the jury to forget about charges 1 and 2 and to put the charges out of their minds and the directions then given that the evidence of these former charges remained for their consideration were contradictory and the jury were left in a position where they would have been able to accept the content of the original allegations made by the former complainers as having been true. The court quashed the conviction on the basis of these misdirections in relation to the prior statements of TG and GG. The court observed that there was no merit in the fifth ground of appeals as the directions on mutual corroboration were adequate.