Graham Paterson v. Her Majesty’s Advocate [2019] HCJAC 60

Description

Note of appeal against conviction:-On 20 September 2018, at Hamilton Sheriff Court, the appellant was convicted after trial on indictment of a charge of assault with intent to rape contrary to section 3 of the Sexual Offences (Scotland) Act 2009 and the common law. After obtaining a Criminal Justice Social Work Report the trial sheriff sentenced the appellant to 3 years imprisonment. The appellant sought leave to appeal against conviction and sentence, albeit leave was only granted in relation to the appeal against conviction. The ground of appeal related to alleged misdirections by the sheriff court in relation to the CCTV evidence, the issue for the jury being whether the admitted assault by the appellant was with intent to rape. It was contended that the sheriff’s directions were confusing and prejudicial. The circumstances were that the CCTV evidence led at trial captured the assault of the complainer by the appellant. It was the appellant’s position at trial that he accepted the assault of the complainer, however, it was not accepted by him that the assault was committed “with intent to rape.” He had tendered a plea on those terms on the first day of his trial and that position had been maintained throughout with his defence counsel in her speech describing the appellant’s conduct as “a terrible, sexual and violent assault ... [but] there was no intent to rape...”. The two specific parts of the trial sheriff’s charge which were criticised in the appeal were where the trial sheriff said:- (1) “...the inference can be drawn that the intention was to go further in the sexual assault and with the intention to rape...”; and (2) “...You’ve seen the nature of the attack. It was prolonged and it looked quite fierce and you saw the brave actions of [the complainer] in trying to, to get away and which she eventually succeeded in doing...”. It was submitted on behalf of the appellant at the appeal hearing that the sheriff had misdirected the jury by making the above remarks to the jury as the comments made expressed an opinion on issues of fact which were solely for determination by the jury. In particular, the sheriff had directed the jury that they could infer from the evidence, including the CCV evidence, that it was the appellant’s intention to go further than he had. The trial sheriff had described the “attack” as “prolonged” and “fierce” and she described the complainer’s conduct as “brave” all of which went beyond the proper function of the trial sheriff and such prejudicial comments were likely to influence the jury, who ultimately had found the appellant guilty by majority, and a miscarriage of justice had occurred. On behalf of the Crown it was conceded that the words referred to may have been unfortunate, however, they did not go much beyond how defence counsel had referred to the conduct of the appellant in her speech to the jury. It was further submitted that the charge should be looked at as a whole in the context of the full trial proceedings and elements of the charge should not be overly scrutinised in isolation. Here the court refused the appeal. The court noted, however, that it is for the jury to determine what evidence is to be accepted and where the evidence is a video recording once the provenance of the recording is established, the jury is entitled to form its own judgment about what the footage shows and make whatever reasonable inferences they are entitled to from it. The court reiterated that “every aspect of fact-finding is exclusively a matter for the jury” and “the presiding judge must be very careful to avoid saying anything which lends his or her authority to a particular interpretation of the facts that the evidence may, or may not, have established”. Where a verdict has been influenced or potentially influenced by any such undue influence then such a guilty verdict may be quashed. In the present case, however, the court took the view that the sheriff did not over emphasise her views of the evidence to the jury or materially misdirect them. The court emphasised that the whole of the charge must be considered and the sheriff made it clear that it was the jury’s function to seek to identify what the appellant’s intent was from an assessment of the witnesses and the CCTV evidence. The court also noted that the appellant’s counsel had used similar language to describe the appellant’s conduct during her speech to the jury as had been used by the trial sheriff and the nature of the serious sexual assault was largely uncontroversial. Whilst the court could see that the words used by the trial sheriff were perhaps unnecessary they related to the physical elements of the sexual assault rather than the issue of intention and the court considered that there had been no miscarriage of justice.