APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Brodie Lord Wheatley	[2013] HCJAC 56 Appeal No: XC373/12   OPINION OF THE COURT   delivered by LADY PATON   in   NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE   by   CRAIG DOUGLAS   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: M C MacKenzie; Drummond Miller

Respondent: Stuart, AD; Crown Agent

 

21 May 2013

 

Introduction

[1] On 9 May 2012 the appellant was convicted after jury trial of the following offence:

"Between 3^rd January 2009 and 27^th January 2009, both dates inclusive, at Enigma, 17 The Academy, Aberdeen, you ... did whilst general manager there, embezzle £40,565 of money"

 

A sentence of 30 months imprisonment was imposed. The appellant appeals against both conviction and sentence.

 

Grounds of Appeal

[2] The Grounds of Appeal are as follows:

"1. It is submitted that the learned sheriff erred in repelling the submission of no case to answer advanced on behalf of the appellant. Properly understood there was insufficient evidence to prove that the appellant was responsible for the embezzlement. While evidence was led that money which represented the daily takings had not been lodged with the complainer's bank, there was insufficient evidence that the appellant was responsible for dishonestly appropriating the funds.

2. The sheriff failed to give the jury clear and proper directions on the appellant's police statement. Properly understood this was a mixed statement. The sheriff's directions (page 15, line 21 to page 16, line 4) fail to make it clear that if the jury accepted the exculpatory parts of the mixed statement, or if the statement raised a reasonable doubt, then they must acquit.

The sheriff gave further directions on the subject of 'statements' made by the appellant to third parties later on in his charge (page 19, line 6). In the context of these 'statements' (which would appear to be the content of a meeting that the appellant had with his employer and e-mails that he sent) the jury are given mixed statement directions (page 19, line 20).

Again at page 21, line 17, the sheriff returns to the subject of statements made by the appellant. At that point he does direct the jury that if they believe the exculpatory part of what the appellant said '... both to the police and to Mr Suttie' then they must acquit.

This latter direction is insufficient to remedy the failure to give the proper direction when the jury were being told about mixed statements. The sheriff did not, in any event, explain to the jury what is meant by the 'exculpatory part' of the statement he made to the police (page 21, line 17).

In the circumstances of this case, in which evidence of the police statement was led by the Crown and the appellant did not give evidence, the failure to give the proper directions has produced a miscarriage of justice.

3. The sheriff directed the jury that there was sufficient evidence in law to convict the jury (charge, page 21, lines 9-11). This direction is unnecessary, irrelevant and apt to confuse the jury. Furthermore the effect of the direction was prejudicial to the appellant since it was apt to suggest that the principle of corroboration was not significant. The appellant was accordingly denied a fair trial and has accordingly suffered a miscarriage of justice.

4. Sentence

The length of the custodial sentence is excessive. Insufficient weight has been attached to the following factors: -

·       The appellant has only two previous convictions (theft in 1998 - when he was 18 years of age and speeding in 2005) both of which were dealt with by the imposition of modest financial penalties.

·       The offence was committed in early 2009 and the appellant was of good behaviour for the three years while on bail awaiting trial."

 

 

The evidence at the trial

[3] The sheriff gives a summary of the evidence in his report and his supplementary report. What follows is an abbreviated outline of the evidence, based on these reports, productions, and the notes of argument for the appellant and the Crown.

[4] The appellant was the general manager of the Enigma club at the relevant time. There were other assistant managers. One of the appellant's functions was responsibility for banking the takings, in particular physically taking the money to the bank. Various employees had access to the safe where the day's takings were placed. Also persons other than the appellant were, on occasion, involved in taking the money to the bank. However the crucial issue in the trial ultimately came to be not "who had access to the safe", or "who had, on occasion, been involved in taking the money to the bank", but "who took the money to the bank on the relevant dates".

[5] When irregularities came to light and in-house investigations began, the appellant sent an e-mail to a colleague Steven George, listing the days when money was taken to the bank during January 2009. In that e-mail, the appellant stated inter alia"

"... I have outlined a breakdown below of the bankings and which days I believe they were banked ... I have checked the rotas to see exactly who is on and I'm pretty much here every day during the week and only off on a Sunday. Normally we go in pairs to the bank but not on every occasion, depending on number of staff on and how busy we are ...

[There follows a list of dates and amounts said to have been banked. The evidence disclosed that the sums described in the e-mail as having been banked on 5.1.09, 9.1.09, 12.1.09, and 23.1.09 had not in fact been received by the bank.]"

 

[6] The appellant was also interviewed by Ian Suttie (the principal shareholder) and Steven George (the financial controller) on 11 March 2009. Mr Suttie opened by speaking about the missing bankings. He "asked the appellant to provide evidence of the banking and stated that as manager he had to explain where the money had went [sic]. [The appellant] stated that he definitely went to the bank ... [The appellant] stated that he did not know that the cash was not in the bank. [Mr Suttie] responded that [the appellant] must have known that the money was not in the bank as he was responsible for ensuring it was banked. [The appellant] stated that he did not have the missing money, and he had been to the bank to pay in the takings from those days. [Mr Suttie] responded by stating that the bank had provided evidence to show that the bankings had never been made, and that the onus was on [the appellant] to refute the allegations ..."

[7] The appellant's position, according to Crown witnesses Nicola Henderson, Ian Suttie, and Steven George, was that he had taken the money to the bank on the relevant days, and the bank was to blame.

[8] Evidence of a police interview with the appellant was led at the trial by the Crown at the request of the defence. During the interview, the appellant inter alia accepted that he had been working at Enigma during the relevant period; that he had responsibility for the finances, including monitoring the takings and depositing them at the bank; but he denied any knowledge of the missing money; mentioned the involvement of others in the banking system; and described his personal financial circumstances emphasising that he was comfortably off.

[9] Other evidence came from employees at the bank, who stated that the bank had investigated and was satisfied that money had not gone missing within the bank; fellow employees of the appellant, who denied having taken the money; and productions including e-mails and lists of each day's takings, and a minute of the meeting on 11 March 2009.

 

The charge

[10] The sheriff's charge contained the following passages:

"[page 15] ... Now, in this case there has also been evidence about ... what the accused said to the police ... This police statement could point to the accused's innocence. Where (as here) the accused has not given evidence, this statement is evidence only to show that it was made and the accused's attitude or [page 16] reaction at that time. That is part of the general picture which you have to consider, but it is not evidence of the truth of what he said ...

[page 19] ... Now, in considering this statement [to Mr Suttie and Mr George] and the relative e-mails, you need to remember that he also denied that he had done anything wrong. So part of what he said to them could point to his innocence, that is his denial, and part could prove towards his guilt, that is an apparent admission that he had possession of the money. You should look at the whole of the statements and the related evidence and compare it to the other evidence in the case. You should also take account of the context in which these statements were made. You have to decide if it was said, and if so, was it true in whole or in part? You can prefer one part of the statement to another, so you could choose to disbelieve the part denying wrongdoing and take the incriminatory part as true. If you believe the part pointing to innocence or if it raises [page 20] a reasonable doubt in your mind about the accused's guilt you must acquit him. Remember when doing so the context in which these statements and e-mails were sent, remember the terms of the e-mails.

Now, the statement itself, that to Mr Suttie and Mr George, was not given under oath, it was not subject to cross-examination. It's a matter for you what you decide to make of this, but it is a cornerstone of the case for the Crown. You will require to decide whether you can draw the inference of guilt from this and the related points of evidence ...

[page 21] ... If you believe the accused or the exculpatory part of what he said to both the police and to Mr Suttie, any evidence supporting the special defence or any other evidence which you think exculpates the accused, then acquit him. Even if you don't believe any of that but if the evidence in general leaves you with a reasonable doubt about the Crown case, acquit him ..."

 

Submissions for the appellant

[11] First Ground of Appeal: Counsel submitted that there was insufficient evidence that (a) the crime of embezzlement had been committed and (b) that the appellant was the perpetrator.

[12] Crown witness Nicola Henderson, a chartered accountant and an employee of Enigma, gave evidence inter alia that it was not always the appellant who "did the banking". However counsel accepted that Miss Henderson's evidence appeared to refer to the act of completing the bank slips on the club premises, and not to the physical taking of the money to the bank. Counsel also accepted that Miss Henderson's evidence did not specifically say that someone other than the appellant had taken the money to the bank.

[13] Crown witness Steven George, financial controller for Enigma, gave evidence inter alia about the e-mail from the appellant (referred to in paragraph [5] above, and the meeting on 11 March 2009.

[14] Counsel drew attention to evidence that other people had access to the safe. There had been no evidence pointing to suspicious actings on the appellant's part. While it was not disputed that there was evidence from bank employees that certain sums of money had never reached the bank, it was for the Crown to prove beyond reasonable doubt that the appellant was responsible and that he had control of the money at the relevant time. The evidence fell short of that. There were four managers with responsibility for money. Other witnesses confirmed that they had on occasions banked the takings, and thus the appellant had not been solely responsible for taking the money to the bank. There was a poor standard of security. There was no regular system of banking. There had been an irregular accumulation of bags in the safe, but that did not point the finger at the appellant. The Crown relied upon a circumstantial case, but the evidence in the round fell short of pointing to embezzlement of funds. Simply being one of a number of employees who had responsibility for banking the takings was not enough. The appellant had lodged a Special Defence of Incrimination, blaming another employee.

[15] The sheriff had therefore erred in rejecting the submission of "no case to answer".

[16] Second Ground of Appeal: The appellant had not given evidence. Thus his statements to the police and to Mr Suttie were important for his defence. The appellant's statement to the police (led by the Crown) was a mixed statement. The sheriff ought therefore to have given the jury a clear direction about the use to which they could put the exculpatory parts. However he had initially given the jury the standard directions for a purely exculpatory statement. Only later in his charge did he say to them that if they believed the exculpatory parts of any statement made by the appellant (either to the police or to Mr Suttie), or if a reasonable doubt was raised in their minds, then they should acquit. But the absence of such a direction at the right time, and in sufficient detail, had resulted in a material misdirection productive of a miscarriage of justice. Had the jury been accurately and fully directed, there was a real possibility that the jury would have reached a different verdict: McInnes v HM Advocate 2010 SC (UKSC) 28; 2010 SCCR 286.

[17] Third Ground of Appeal: The direction that there was "sufficient evidence to convict" was unnecessary (McPhee v HM Advocate 2009 JC 308 paragraph [40]). Of course there was a sufficiency, otherwise the case would not be before the jury. However the picture might change, depending upon what strands of circumstantial evidence the jury chose to accept. Also the direction seemed to have the effect of superseding any direction about corroboration. Had this unnecessary direction not been given, there was a real possibility that the jury would have reached a different verdict: McInnes v HM Advocate cit sup.

[18] Fourth Ground of Appeal: It was accepted that a custodial sentence was appropriate, but the length of the sentence imposed (30 months) was excessive. In particular: (i) While accepting that embezzlement of about £40,000 was a serious offence, nevertheless a sentence of 30 months overstated its gravity. (ii) The appellant's personal circumstances had not been given sufficient weight. The appellant had only two non-analogous convictions, one for theft in 1998 (when aged 18) and one for speeding in 2005, for each of which a financial penalty had been imposed. The embezzlement offence had taken place in 2009, and he had been of good behaviour during the three years pending trial. Counsel referred to some press reports of sentences imposed in other embezzlement cases. There were also references vouching for the appellant's good work and his character. The court was invited to quash the sentence of 30 months and to impose a lesser sentence.

 

Submissions for the Crown

[19] First Ground of Appeal: The system adopted at the premises was that takings would be placed in the safe. They would accumulate there. Twice a week, on a Monday and a Friday, the cash would be taken to the bank. What had happened was that the amount paid in was less than the accumulated cash. Thus some of the accumulated money had successfully arrived at the bank, but not all. There had been an embezzlement of the difference. Ultimately those in authority had noticed that the deposits at the bank were less than the business ledger. The fact that there had been an accruing problem, a growing deficiency of funds, was relevant, as the appellant (who had overall financial responsibility) might be expected to become aware of that deficiency. A jury would be entitled to conclude that what they were viewing was a system of dishonest acquisition put in place by someone who had overall financial control of the business. It was part of the appellant's job to report in to Head Office to achieve a reconciliation between the business ledger and the amounts banked, and as Mr Suttie said in evidence: "It was the appellant's responsibility to take the money to the bank". Because of his overall responsibility for the financial side of Enigma, the appellant had been in a better position to do something dishonest than others. The jury were entitled to take such a circumstance into account.

[20] Furthermore, the Crown case (a circumstantial one) had to be taken at its highest. Each individual piece of evidence might not seem incriminating in itself: but what mattered was the concurrence of testimony (HM Advocate v Gage [2006] HCJAC 7). If there were different interpretations available, it was for the jury to decide which one to accept, and what inferences to draw. In the present case, the appellant was the general manager with overall responsibility for banking the takings; he had access to the monies; cash amounting to about £40,000 had gone missing; there were 22 instances of failures to pay in cash over 24 days (according to one witness Nicola Henderson) yet nothing was done about it; one inference available to the jury was that, given the appellant's position in the business, he ought to have known that cash had not been paid in, and that he did in fact know; finally the appellant admitted having taken the money to the bank on the relevant days.

[21] The jury were entitled to conclude that the more complicated the embezzlement, the more the perpetrator had to be in control. The jury were also entitled to take into account the fact that bank employees gave evidence that there had been no loss or misconduct at the bank; the incriminee gave evidence and denied taking the money; all the other assistant managers gave evidence and denied taking the money. Those adminicles of evidence, together with the evidence referred to in the paragraph above, were sufficient in a circumstantial case to allow the jury to draw the inference that the appellant had dishonestly appropriated money.

[22] In the result therefore the sheriff was correct to repel the "no case to answer" submission.

[23] Second Ground of Appeal: It was accepted that the appellant's statement to the police was a mixed statement. There was therefore a misdirection at pages 15 to 16 of the charge. However no miscarriage of justice had occurred. (i) The charge had to be read as a whole. At page 21 line 16 et seq the sheriff clearly directed the jury that if they believed the exculpatory parts of what the appellant told the police, then they should acquit him. (ii) The appellant's position, not only with the police but with Mr Suttie, had been that he had delivered the money to the bank, and that he had not personally misappropriated the money. The jury had rejected the exculpatory parts of what the appellant said to Mr Suttie and Mr George, and thus it could not be said that there was a real possibility of a different verdict, had the jury been properly directed. (iii) The defence jury speech had emphasised the exculpatory nature of the appellant's statements. In the result there was no real possibility that the jury would have returned a different verdict had the misdirection not been given: McInnes v HM Advocate cit sup.

[24] Third Ground of Appeal: The direction given was a standard one, contained in the Jury Manual. The sheriff was entitled to advise the jury that there was sufficient evidence in law entitling them to convict, and he was careful to qualify his charge appropriately.

 

Final reply for the appellant

[25] In relation to the First Ground, the advocate depute's emphasis on a more complex scheme (siphoning-off money rather than non-delivery of bags) - which had not been foreshadowed in the papers - suggested that the focus should be upon the person who completed the pay-in slips. There was no evidence that the appellant completed those slips.

[26] In relation to the Second Ground, the appellant had said more in his interview with the police than in his meeting with Mr Suttie and Mr George (for example, he mentioned others involved in the banking system; the name of the incriminee; and his personal financial circumstances). The misdirection about mixed statements could not therefore be dismissed because of the jury's response to the latter meeting.

 

Discussion

[27] First Ground of Appeal: In considering the submission of no case to answer, the sheriff was entitled to assess the Crown case at its highest. He was also entitled to bear in mind the guidance in relation to circumstantial cases given in Al Megrahi v HM Advocate 2002 JC 99, 2002 SCCR 509 paragraphs [32] to [36]. In particular:

1. In a circumstantial case, it is necessary to look at the evidence as a whole. Each piece of circumstantial evidence does not need to be incriminating in itself. What matters is the concurrence of testimony.

2. The nature of circumstantial evidence is such that it may be open to more than one interpretation. It is for the jury to decide what interpretation to adopt, and whether to draw the inference that the accused is guilty of the crime.

3. Each of the several circumstances may be quite neutral and not incriminating. The question for the jury is what inference they draw, beyond reasonable doubt, when the circumstances are viewed as a whole.

4. There may be a body of evidence, for example, alibi evidence, which is quite inconsistent with the accused's guilt. A jury must consider all the evidence. But having done so, they are entitled to reject the inconsistent evidence if they so choose.

 

[28] In the present case, there were many strands of evidence implicating the appellant. The appellant was the general manager who had overall responsibility for the finances and for banking the takings. In his position as the general manager senior to other assistant managers, he had control of the system whereby takings were put into the safe, and then physically carried to the bank on about two days per week. During the relevant period (about a month) there were failures to bank sums of cash, and the cash was unaccounted for. When discrepancies between the business ledger and the bank deposits was discovered, inquiries were made of the appellant. In an e-mail to Steven George, the appellant indicated that he had taken the questioned sums of cash to the bank on the relevant days. Further during a meeting attended by Steven George and Ian Suttie, the appellant confirmed that he had taken the monies to the bank on the relevant days. Evidence was led from other Enigma employees (including the incriminee) in which they denied having taken the money. Evidence was led from bank employees refuting any suggestion that bank staff had mislaid or misappropriated the money. Documentary evidence was referred to showing the discrepancies between the takings recorded at the Enigma premises and the sums lodged at the bank, and the jury would be entitled to take into account a pattern of lodging lesser amounts than the takings during the entire month of January 2009 without any question or investigation being made by the appellant, a pattern which (they would be entitled to conclude) pointed to the appellant who had overall control of the finances rather than to someone in a lesser position with no overall control.

[29] In our opinion, bearing in mind that the sheriff had to assess the Crown case at its highest, there was more than sufficient evidence implicating the appellant, and the sheriff did not err in rejecting the submission of no case to answer.

[30] Second Ground of Appeal: Both the Advocate depute and the defence agreed (correctly in our view) that the appellant's statement to the police was a mixed statement. Accordingly had the direction given at pages 15 and 16 of the charge stood alone, there would have been merit in this ground of appeal. However it did not stand alone: at page 21 the sheriff made it clear to the jury that, if they believed what the appellant told the police in his exculpation, or if what he said raised a reasonable doubt about his guilt in their minds, then they must acquit. That was the most recent direction on the matter given to the jury before they retired to consider their verdict. It would be fresh in their minds, and on one view gave further assistance and explanation to the jury in addition to what had been said earlier. In these circumstances, no miscarriage of justice has occurred. The McInnes test has not in our opinion been satisfied. We are not persuaded that there is any merit in this ground of appeal.

[31] Third Ground of Appeal: The direction given is a standard direction which can be found in the Jury Manual. The comments in McPhee v HM Advocate 2009 JC 308 were obiter. Moreover that case was rather special on its facts. It involved two complainers and the application of the Moorov doctrine. Such a situation might call for particular care, in that if the jury disbelieved one complainer, that would remove the only evidence providing corroboration for the other complainer, resulting in insufficient evidence for a conviction. However the present case was different on its facts, with many strands of evidence to be assessed by the jury bearing in mind the whole directions given by the sheriff including the need for corroboration. Reading the charge as a whole, and bearing in mind the nature of the present case, we do not accept that this was an unnecessary or confusing direction, or that any miscarriage of justice occurred.

[32] Fourth Ground of Appeal: The appellant embezzled a sum of £40,565 from his employers when in a position of trust as their general manager. As the appellant's position remains one of denial of guilt, no explanation in mitigation was advanced on his behalf (in contrast with the mitigatory explanations given in the press cuttings referred to by counsel). Even taking into account the relative lack of previous convictions, and the positive references submitted on his behalf, the offence is of such a nature and gravity that the disposal selected by the sheriff fell well within the range of reasonable disposals open to him.

 

Decision

[33] For the reasons given above, we refuse both the appeal against conviction and the appeal against sentence.