Man convicted of attempted rape wins appeal over sheriff’s misdirections

The Criminal Appeal Court ruled that a “miscarriage of justice” had occurred after the sheriff failed to give appropriate directions on the credibility and reliability of the complainer.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lady Clark of Calton, heard that the appellant Patrick O’Neill had also been found guilty of assault and being concerned in the supply of cannabis, and had pled guilty to a statutory breach of the peace.

The grounds of appeal were (i) 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 the basis for a significant part of the cross-examination, and referred to in the defence speech; and (ii) that in directing the jury in relation to distress, the sheriff had erred in failing to advise them that the distress required to be spontaneous, genuine and arising directly from the conduct complained of.

The court heard that certain aspects of the police statement put to the complainer in cross-examination were consistent with her evidence in chief, but that there were parts which were “incorrect as to the facts”.

The appeal judges noted that the sheriff gave conventional directions to the jury that evidence is what is said from the witness box, but made no mention of the statements which had been put to the complainer in this case, the effect of them, or the way in which the jury might use the evidence relating to them.

When the jury returned to ask if they could see the statement, the sheriff said “no”.

The sheriff also gave the jury relatively standard directions about corroboration, without explaining the extent to which distress might be used as corroboration.

She also failed to tell that it was essential for conviction to follow that they should find the complainer to be “credible and reliable” in the essentials of her evidence.

And, the sheriff’s directions as to the interplay between differing sections of the Sexual Offences (Scotland) Act 2009 and the verdicts available to the jury were rather “difficult to follow” – the advocate depute describing them as “impenetrable”.

Allowing the appeal, the court observed that the extent to which a trial judge may be required to give a direction on the issue of prior statements “will depend very much on the circumstances of the case, the content of the statements, and the evidence given in relation to them”.

However, Lady Dorrian added, the extent to which a direction might be required must also be seen “in the context of the charge as a whole”.

In the recent cases of Masocha and Moynihan the charge was “otherwise unblemished”, and in each case the trial judge had “clearly directed the jury” as to the need to accept the complainer as credible and reliable before they could convict.

Delivering the opinion of the court, the Lord Justice Clerk said: “In the present case, the charge was anything but otherwise unblemished. In the first place, there was no direction that, for conviction to follow, the jury required to accept the complainer as credible and reliable. Further, the directions suggesting that the crown case was to be approached as a circumstantial one, meant that the jury might have considered the evidence of the complainer merely to be one more element in that case to be weighed in the balance.

“When the jury asked about the statement they were told that they could not see it because ‘a witness’s evidence is what they said in the witness box’. Whilst this latter observation is correct as far as it goes, it at least ran the risk that, in the absence of a direction, the jury might think they were unable to use the statement even for the obvious purpose of a cross-check on reliability and credibility.

“Finally, the context was also of a charge which was, as a whole, confusing. The directions on the issue of distress whilst apparently a direction in favour of the defence, were nevertheless confusing, since the jury were told that the evidence was ‘available to you and relevant’ but they were left in the dark about what its possible relevance might be, in light of the direction which followed. The directions in relation to the permutations of verdict available to the jury on a simple charge of assault with intent to rape, were very difficult to follow.

“In all the circumstances therefore we are satisfied that this is a case in which a direction was required, that the misdirection in context was a material one and that a miscarriage of justice has occurred. We will accordingly allow the appeal in relation to ground 1.”