Boncza-Tomaszewski v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 02 June 2000 |
| Neutral Citation | 2000 SCCR 657 |
| Date | 02 June 2000 |
| Docket Number | No 71 |
| Court | High Court of Justiciary |
JC
LJ-G Rodger, Lord Philip and Lord Carloway
Procedure—Solemn procedure—Reference from Criminal Cases Review Commission—Pannel's conviction in 1948 challenged on ground of misdirection previously rejected by Appeal Court—Whether current understanding of common law and present-day standards to be applied to appeal—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 194B1
Procedure—Solemn procedure—Charge to jury—Jury directed that complainer's evidence of identity of sexual assailant could be corroborated by medical evidence of her condition—Appeal Court refusing appeal by applying Moorov doctrine in respect of corroborated non-sexual assault—Jury not directed on Moorov doctrine—Pannel's case referred to Appeal Court by Criminal Cases Review Commission—Whether miscarriage of justice.
In 1948 the pannel was tried on indictment for assaulting his niece and treating her cruelly and unnaturally to her grievous hurt and bodily injury. The pannel was found guilty of items 1, 11, 12, 15, 18 and 19 on the indictment. Items 1 and 15 libelled assaults with various implements between September 1947 and January 1948 and items 11, 12, 18 and 19 libelled assaults involving indecency and the use of implements during the same period. The trial judge (the Lord Justice-Clerk (Thomson)) directed the jury that so far as items 11, 12, 18 and 19 were concerned, there was sufficient corroboration of the niece's evidence if they accepted the evidence of two doctors who had examined the niece and given evidence about her physical condition. On being convicted the pannel appealed to the High Court of Justiciary on the ground, inter alia, of insufficiency of evidence that the pannel was the perpetrator of the sexual assaults. The court accepted that the medical evidence could not corroborate the niece's evidence that the pannel had committed the assaults but refused the appeal by applying theMoorovENR doctrine. In 1999 the Scottish Criminal Cases Review Commission referred the pannel's case to the High Court of Justiciary under sec 194B of the Criminal Procedure (Scotland) Act 1995. At the hearing of the referral the pannel's counsel did not challenge the convictions in respect of items 1 and 15.
Held (1) that the court had to deal with the issues raised in a referred appeal on the basis of the court's present understanding of the common law and on the basis of present-day standards rather than by reference to the standards applying at the time of the trial or original appeal (p 589E–F); (2) that it was a matter for the jury to decide whether there was the necessary inter-relationship between the alleged incidents on separate occasions to allow the jury to use the evidence in relation to one incident as corroboration of evidence relating to the others (p 598C); (3) that as the jury had not been given directions as to the application of the Moorov doctrine, they had been misdirected (p 598D); and (4) that the proper course for the Appeal Court to have adopted in
1948 in light of the trial judge's misdirection was to quash the pannel's conviction on items 11, 12, 18 and 19, since there was no room for applying the proviso to sec 2 of the Criminal Appeal (Scotland) Act 1926 (p 598G); and (the Crown not opposing) appeal allowed.R v Bentley [1998] TLR 492 followed.
Jerzy Boncza-Tomaszewski (also known as George Fraser) was charged on an indictment at the instance of the Right Honourable John Wheatley, His Majesty's Advocate, the libel of which is set forth in the opinion of the court.
The cause came to trial before the Lord Justice-Clerk (Thomson) and a jury in the High Court of Justiciary at Dundee.
On 25 May 1948 the pannel was found guilty of items 1, 11, 12, 15, 18 and 19 on the indictment and sentenced to seven years penal servitude.
The pannel thereafter presented a note or application to the High Court of Justiciary for leave to appeal against conviction in terms of sec 1(b) of the Criminal Appeal (Scotland) Act 1926.
The cause called before the High Court of Justiciary comprising the Lord Justice-General (Cooper), Lord Russell and Lord Keith for a hearing on 22 October 1948 when the application was dismissed.
In 1999 the Scottish Criminal Cases Review Commission referred the pannel's case to the High Court of Justiciary in terms of sec 194B of the Criminal Procedure (Scotland) Act 1995.
Cases referred to:
Cordiner v HM Advocate 1993 SLT 2
Farrell v Normand 1993 SLT 793
Gillespie v MacmillanSC 1957 JC 31
Harrison v Mackenzie 1923 JC 61
McKenzie v HM AdvocateSC 1959 JC 32
Moorov v HM AdvocateSC 1930 JC 68
Morton v HM AdvocateSC 1938 JC 50
R v Bentley [1998] TLR 492
Smith v LeesSC 1997 JC 73
Stirland v DPPELR [1994] AC 315
Textbook referred to:
Dickson, Evidence (3rd ed), para 1809
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Rodger), Lord Philip and Lord Carloway for a hearing on 2 June 2000.
Eo die the court allowed the appeal for the reasons set forth in the opinion of the court subsequently delivered by the Lord Justice-General (Rodger).
Opinion of the Court—[1] The appellant is Jerzy Boncza-Tomaszewski who is also known as George Fraser. In 1940 he was a member of the Polish forces fighting in France who were evacuated to Britain at Dunkirk. He was then stationed at Arbroath and married Ethel Scott Fraser later that year. After the war a niece came from Germany to live with the appellant and his wife. In 1948, on the basis of complaints made by his niece, the appellant and his wife were indicted for trial in the High Court at Dundee on elaborate charges of assaulting his niece and treating her cruelly and unnaturally to her grievous hurt and bodily injury. The appellant and his wife were represented by the same counsel. From various comments in the papers it is apparent that the trial was conducted against the background of a heated atmosphere of public hostility to the appellant, partly at least due to his national origin. The indictment itemised various alleged events which were said to have occurred on different occasions. At the end of the evidence for the Crown and defence the Advocate-depute withdrew the libel against Mrs Boncza-Tomaszewski. On 25 May 1948, however, the appellant was convicted of items 1, 11, 12, 15 18 and 19 on the indictment and sentenced to seven years penal servitude. He appealed against his conviction but on 22 October 1948 the appeal court refused his appeal. The appellant served his sentence and was released in 1953. He and his wife divorced, though they have remained on good terms. The appellant stayed on in this country, remarried and raised a second family. The appellant's niece has since died.
[2] From the time of his conviction onwards the appellant maintained that he had been wrongly convicted and, after his appeal was dismissed, presented petitions to the Secretary of State—but without success. Eventually, in 1999 the Scottish Criminal Cases Review Commission referred his case to this court under sec 194B of the Criminal Procedure (Scotland) Act 1995 on the basis that there was evidence now available which indicated that there had been a miscarriage of justice. The fresh evidence related to matters which had occurred before the complainer came to this country and which would have had a bearing on her credibility. At the time of the trial in 1948 and for many years afterwards it was extremely difficult, of course, to contact potential witnesses from Poland, far less to ensure their attendance at a trial in Scotland. Although the Commission referred the whole case to the court, the challenge to the conviction was restricted to items 11, 12, 18 and 19. At the hearing before us senior counsel who appeared for the appellant indicated that he was not asking the court to quash the appellant's conviction of items 1 and 15. While the appellant himself did not accept that he had been guilty of assaulting the complainer, he and his advisers did accept that there was no proper basis upon which they could ask this court to quash his conviction of these aspects of the indictment. We are therefore concerned with his conviction of the other items only.
[3] As we have explained, the Commission referred the case to this court on the basis of the existence of relevant fresh evidence. The appellant's agents lodged many documents, including affidavits, in support of that ground of appeal. The documents had been gathered by the Commission and had been helpfully selected and arranged by the appellant's counsel and agents. Among the documents were the report of the trial judge, Lord Justice-Clerk Thomson, the original grounds of appeal to this court in 1948 and the opinions of the Lord Justice-General (Lord Cooper) and the other judges in the appeal court. At a procedural hearing on 23 March 2000 the court suggested that it might be helpful if counsel for the appellant were in effect to amend the grounds of appeal under the reference to include the original grounds of appeal so that the court would be able, if appropriate, to review the whole matter. In due course this was done. Among the original grounds of appeal were two which are of significance for present purposes: “1. that there was insufficient evidence in law to warrant a conviction on the Second Charge (Items 11, 12, 18 & 19) in respect that there was no corroboration of the identification of the Appellant; or alternatively that there was no sufficient corroboration;…5. that the Presiding Judge misdirected the Jury in respect that he did not direct the Jury in the sense of Reasons 1 to 4.” When counsel for the appellant adopted the original grounds of appeal, these particular grounds became a basis upon which the court was asked to quash his conviction even although the appellant's appeal on those grounds had been heard and determined by the High Court in 1948 (sec 194B(1) of the 1995 Act).
[4] The hearing of the appeal...
To continue reading
Request your trial
- Frank Carberry V. Her Majesty's Advocate
-
Abdelbaset Al Megrahi V. Her Majesty's Advocate
...v HM Advocate 2004 S.C.C.R. 220; Gray and O'Rourke v HM Advocate 2005 S.C.C.R. 106; Crombie v Clark; Boncza-Tomaszewski v HM Advocate 2000 J.C. 586; and Bishop v Procurator Fiscal at Tain (2005 HCJAC 40, 11 March 2005)). That thoroughness was also demonstrated in the Commission's considerat......
-
R v Philip Blaney
...conviction and observed that the High Court of Justiciary in Scotland had also adopted this approach in Boncza-Tomaszewski v HM Advocate 2000 SCCR 657. Carswell LCJ noted, however, that in R v King [2000] 2 Cr.App.R. 391 Lord Bingham CJ had discussed whether this approach was universally ap......
-
Alexander Lewis Hutchison Reid V. Her Majesty's Advocate
...to take that fresh evidence into account, even if the outcome might seem harsh to the court below (Boncza-Tomaszewski v HM Advocate 2000 SCCR 657). It would be appropriate to apply the test in McInnes v HM Advocate 2010 SC (UKSC) 28 to fresh evidence appeals such as this (cf Fraser v HM Adv......