Minister wins appeal against sexual assault convictions after sheriff’s ‘misdirection’ on hearsay evidence

The Criminal Appeal Court quashed the convictions against Walter Masocha after ruling that the sheriff failed to direct the jury about the “limited” weight which could be given to “prior inconsistent statements” by two complainers in relation to whom similar charges had been dropped.

The Lord Justice General, Lord Carloway, sitting with Lady Paton and Lord Drummond Young, heard that the appellant was sentenced to a community payback order in April 2015 after being found guilty following a trial at Falkirk Sheriff Court of two charges of sexual assault against two church members, one of whom was a 13-year-old girl.

The appellant, who was the founder and spiritual leader of the Church of Agape in Sauchieburn, had originally appeared on five charges, but the first charge involving a complainer “TG” had been withdrawn by the Crown at the First Diet. The second and third charges, re-numbered first and second on the indictment, involving a complainer “GG” were withdrawn during the course of the trial.

During the trial, the complainer in charge 3 gave evidence regarding five specific assaults, but was later cross-examined over emails she had sent to the appellant after the events libelled, in which she described him as “my hero, my mentor, my rock” and said: “You did nothing wrong to me and all you ever wanted was to raise me up as your daughter. In your grace if you allow me I want to clear your name publicly, and restore your reputation to the world.”

The complainer in charge 4, who spoke to four incidents, was referred to a particular blog which she initially denied seeing but later, under cross-examination, accepted that she had effectively lied about this in court.

The third witness for the Crown was GG, who was adduced in support of the then charges 1 and 2.

She accepted that she had made a relatively detailed statement to the police containing the allegations in the original libel but denied that anything untoward had happened towards her.

In due course the appellant led TG, the former complainer in the original charge 1, who also spoke to having made certain allegations which she had then withdrawn.

Five grounds of appeal were advanced on behalf of the appellant, principally focusing on alleged misdirection of the jury, but only one was successful.

It was argued that the sheriff misdirected the jury in failing to tell them about the “evidential value” of the prior statements containing the allegations made by TG and GG.

The Crown had accused both witnesses of lying and had suggested to them that the information, which they had originally provided to the police, had been true.

A direction from the sheriff on this matter had been “essential” and not a matter of discretion.

It was submitted that a “miscarriage of justice” had occurred because the jury might have accepted the original allegations as true and gone on to take that into account in assessing the evidence of the complainers on the remaining charges.

Delivering the opinion of the court, the Lord Justice General said: “It is accepted by the Crown, as it was bound to be, that there was a misdirection by omission in failing to direct the jury on the limited use to which the prior inconsistent statements, that is to say the allegations of TG and GG about their activities with the appellant, could be put. This evidence was hearsay and it was incumbent upon the sheriff to direct the jury as to its value.

“In particular, the direction ought to have included that these statements could not be used as proof of fact, when the witnesses had denied their truth. Given the acceptance that there was a misdirection, the issue then is whether the misdirection was material in the sense of one which resulted in a miscarriage of justice.

“The sheriff gave directions, albeit of a limited nature, which initially told the jury to forget all about charges 1 and 2. He later said that they could put the charges out of their minds and not let those charges influence them in relation to the remaining charges.

“Nevertheless, there were somewhat contradictory directions given to the effect that the evidence of the former charges remained for their consideration and, subsequently, that they were entitled to compare what one witness, such as a complainer, had said with other evidence in the case. That other evidence would have included the testimony in relation to the prior inconsistent statements of the former complainers about the massages on the appellant.

“In these circumstances, a miscarriage of justice has occurred. In the absence of the required direction, the jury were left in a position whereby they would have been able to accept the content of the original allegations made by the former complainers as having been true. They would have been able to go on to take these episodes into account in assessing the evidence of the complainers on the remaining charges, which also concerned events of a sexual nature. Such an approach ought to have been discounted by a direction to the opposite effect.”