Patrick O’Neill v. Her Majesty’s Advocate [2016] HCJAC 86

Note of appeal against conviction:- The appellant was convicted after trial on indictment at the sheriff court of:- (1) a charge of assault; (2) being concerned in the supply of cannabis contrary to section 4(3)(b) of the Misuse of Drugs Act 1971; and (3) a charge of assault with intent to rape. He had previously pled guilty to a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. He appealed against his conviction in relation to the charge of assault with intent to rape on the following grounds:- (a) that the sheriff erred in failing to direct the jury in relation to an inconsistent prior statement by the complainer to the police, which had been referred to during the course of the cross-examination of the complainer and was referred to during the course of the defence speech; and (b) that the sheriff had erred in failing to advise the jury that in relation to distress it required to be spontaneous, genuine and arising directly from the alleged conduct described by the complainer. At the trial the complainer gave evidence which in certain respects was different to what she had stated in her police statement. These differences were highlighted during the course of the cross-examination of the complainer and also in the defence speech. The trial sheriff made no mention of the prior inconsistent statement made by the complainer in her charge to the jury and the jury received no directions in relation to the effect of the statement or of the use that could be made of it in relation to how the jury should assess the reliability and credibility of the complainer. During the course of the jury’s deliberations the jury asked if they could have sight of the police statement to which the trial sheriff stated:- “The answer to the question is quite short, and it is “no”. I remind you of what I said to you about a witness’s evidence is what is said in the witness box.” In relation to the issue of distress the trial sheriff did not provide full directions in relation to the extent to which distress could be used to corroborate the evidence of the complainer. It was submitted here on behalf of the appellant that the trial sheriff should have fully directed the jury on the use they jury could make of the complainer’s prior inconsistent statement which had been put it terms of section 263(4) of the 1995 Act. This was particularly so in light of the contents of the defence speech and the criticisms of the complainer’s evidence which were made in anticipation of directions from the trial sheriff which would follow. The problem was compounded by the manner in which the trial sheriff dealt with the request from the jury to see the statement. Whilst the sheriff was correct not to allow the jury to see the statement the response given by the sheriff that they could not see the statement because evidence was what was said in court only would lead to further confusion as to the extent that the statement could be used in assessing credibility and reliability. It was further submitted on behalf of the appellant that the directions given in relation to distress were inadequate, particularly given the defence submission that any distress was not attributable to this particular charge and may be related to another matter. It was submitted that a specific direction ought to have been given to the jury particularly given that the distress was being relied upon by the Crown as corroboration. Here the court allowed the appeal. The court considered that the extent to which a trial judge will be required to give directions on prior inconsistent statements will depend very much upon the circumstances of the case and the nature of any inconsistency. Whilst there may be cases where no specific direction is considered necessary (Moynihan v HMA [2016] HCJAC 85) there may be occasions where directions in the context of the charge as a whole areq2's required. In Moynihan the court considered that the charge was ‘unblemished’ and the trial judge had adequately directed the jury that to convict they had to accept the complainer as credible and reliable in all essentials of the charge. In the present case the charge as a whole was flawed, there being no direction that it was essential for conviction that the jury should find the complainer to be credible and reliable in the essentials of her evidence. Further, in the absence of a direction regarding the statements and the use that could be made of it the remark by the trial sheriff that “a witness’s evidence is what they said in the witness box” might have resulted in the jury not using the terms of the statement as a means to test the complainer’s evidence. In addition, the court considered that, whilst the directions on distress could be viewed as being favourable to the appellant, they nonetheless contributed to confusion regarding the extent to which distress may be relevant. In addition, the court observed that the directions in relation to the various verdicts which were available to the jury were very difficult to follow, described by the Crown here as “impenetrable”. The court considered that the absence of specific directions in relation to the prior statement was a material misdirection and one that resulted in a miscarriage of justice and the conviction in relation to the charge of assault with intent to rape was quashed.