APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lord Malcolm Lord Osborne	[2011] HCJAC 89 Appeal No: XC480/10 OPINION OF THE COURT delivered by LORD MALCOLM in NOTE OF APPEAL AGAINST CONVICTION by PAUL WILLIAM LUMSDEN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: John Scott, Solicitor Advocate; Capital Defence Lawyers

Respondent: Joanna Cherry, Q.C., A.D., Crown Agent

29 September 2011

[1] The appellant was found guilty by verdict of the jury in respect of two charges of lewd, indecent and libidinous practices towards two young girls, SD and KS, occurring between 1986 and 1992. The sheriff imposed an extended sentence of 4 years, with a custodial period of 30 months. The appellant has challenged his conviction on various grounds, but on his behalf Mr Scott pressed only one, namely that the sheriff misdirected the jury in that he omitted to instruct them as to how they should deal with the agreed fact that in 1993 SD told police officers that she had not been abused by the appellant. In particular the jury were not informed that they could use this evidence to test the credibility and reliability of the contrary evidence given in the witness box by SD.

Sheriff's report

[2] When dealing with this ground of appeal the sheriff doubted whether a simple denial was a prior inconsistent statement. He questioned the need for specific guidance on the matter, and he was unsure that an intelligible direction could have been framed. He observed that the jury were well aware that SD had previously denied the account given in court.

Submissions for the respondent

[3] The Advocate depute submitted that the jury knew of the earlier denial (which was set out in a joint minute of agreement) and that the directions given by the sheriff were sufficient for the jury to understand that this could have an impact upon her credibility and reliability. She pointed to directions that the jury could compare the evidence of a witness with other evidence in the case when deciding whether the witness was credible and reliable, and that they could accept only part of a witness's evidence. She sought to distinguish the cases of Haggerty v HMA [2009] HCJAC 31 and Niblock v HMA 2010 SCCR 337. The lack of the normal direction on a prior inconsistent statement was "far from ideal"; however, in the particular circumstances of this case, it did not amount to a misdirection, and, in any event, there was no miscarriage of justice.

Decision

[4] In our view the jury was misdirected. The jury was told that, along with the joint minute, the evidence in the case consisted of the answers given in court by the witnesses. They were instructed to reach their verdict only on the basis of the evidence in the case. Those directions were standard and unexceptionable. However, when a relevant exception to the hearsay rule arises, such as a prior inconsistent statement, the jury requires to be directed on the matter, otherwise they may neglect to give the earlier statement proper consideration. As to the sheriff's explanations in his report, with respect, we disagree. Section 263(4) of the Criminal Procedure (Scotland) Act 1995 applies to prior statements which differ from the evidence given at the trial. The earlier denial by SD that she had been abused by the appellant was wholly different from her evidence. Furthermore we see no difficulty in framing an appropriate direction along the lines that, although the earlier statement could not replace the evidence given in court, it could be considered when examining the credibility and reliability of SD's evidence. The submissions of the Advocate depute stressed that the jury was well aware of SD's earlier statement, but they did not address the need for the jury to be guided on how they might approach that fact when assessing her evidence.

[5] We are also satisfied that this was a material misdirection productive of a miscarriage of justice. The prosecution relied on the rule of mutual corroboration in respect of the accounts given by the two complainers, so the acceptability of SD's evidence was critical to the conviction on both charges. In addition, the sheriff gave directions to the jury to the effect that they could have regard to evidence given by Professor McPherson who said that there could be good reasons why, when aged 13, an abused person would deny the allegations. In our opinion basic fairness required the jury to be told that it was also open to them to treat the earlier denials as raising a question as to the credibility and reliability of SD's evidence. We have considered whether this is a sufficiently obvious proposition to allow us to assume that it must have been appreciated by the jury. However, given that, quite properly, the jury was directed to decide the case only with regard to the evidence given in court, we consider that this should not have been left to chance or to supposition. Instead a clear direction on this exception to the hearsay rule should have been given. While every case depends upon its own facts and circumstances, this is in line with the decisions in Haggerty and Niblock. In the latter case the Lord Justice Clerk, Lord Gill, observed that a number of provisions in the 1995 Act provide for situations in which reference can be made to a prior statement of a witness. He expressed the opinion that the presiding judge or sheriff should direct the jury specifically on the evidential significance of such a statement.

[6] The appeal having succeeded, the conviction shall be quashed in respect of both charges.