K.W. v. Her Majesty’s Advocate [2018] HCJAC 1

Note of appeal against conviction:- The appellant went to trial at the High Court in relation to various charges of indecency alleged to have been committed against three young males when the appellant was aged between 12 and 15. It was further alleged that he had supplied them with drugs. At the close of the Crown case the charge relating to one of the complainers, JG, was withdrawn. The appellant was subsequently convicted of the charges relating to the remaining two complainers, GR and SR. The appellant appealed against his conviction in relation to criticisms of the Crown speech to the jury about the use to which the jury were entitled to make of the evidence of JG together with criticisms of the trial judge’s directions to the jury which, it was said, failed to address and correct what had been said by the Advocate depute in relation to the evidence of JG. It was further contended on behalf of the appellant that the Crown, by maintaining that the appellant was guilty of a charge which had been withdrawn, were acting in breach of the appellant’s Article 6 rights and a compatibility issue arose. The circumstances were that the Crown withdrew the charge relating to JG. In his speech to the jury the AD made certain limited references to the evidence of JG and the limited use that could be made of his evidence by the jury, however, at no stage was it suggested by the AD that JG’s evidence could be used for the purposes of mutual corroboration with the remaining charges relating to the evidence of GR and SR. In his speech to the jury counsel for the appellant did not take issue with what the AD had said about JG’s evidence and what the jury might do with it. Defence counsel submitted to the jury that JG’s evidence could not be used for the purpose of mutual corroboration. The trial judge gave directions to the jury in relation to mutual corroboration when again there was no suggestion that the evidence of JG could be used for that purpose in relation to the remaining two complainers. The appellant appealed. It was contended on behalf of the appellant that the AD invited the jury to use the evidence of JG to mutually corroborate the evidence of GR ad SR. It was further contended that in his speech defence counsel directly contradicted what had been said by the AD in relation to the evidence of JG and that the trial judge failed to adequately deal with that inconsistency in his charge. Here the court refused the appeal. The court made a number of criticisms of the way in which the grounds of appeal were drafted and then presented. In particular, the court expressed concern in relation to the factual basis upon which the appeal was predicated in that the AD did not at any stage suggest to the jury that JG’s evidence was available to mutually corroborate the evidence of GR and/or SR. In addition, it was noted that defence counsel in his speech did not directly contradict what the AD had said in his speech and, as such, the inconsistency referred to by counsel for the appellant did not exist and there was no requirement for the trial judge to resolve any such issue. In addition, the court noted that counsel for the appellant stated to the court that the reason for the Crown withdrawing the charges relating to JG was that the evidence related to a period when the appellant was below the age of 12. The court observed that that was incorrect and the Crown had subsequently indicated to the court that the reason the Crown had withdrawn the charges relating to JG was due to the vague way in which JG had given his evidence. The court went on to criticise the manner in which the appeal had proceeded and the incorrect factual assertions that had been made at various stages of the procedure. The court observed that where such outspoken criticisms and serious allegations were made against the AD and the trial judge it was essential that they were supported by the accurate factual situation and not on the misrepresented position seen in the present case.