Appeal Against Conviction By Brian Newman Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Menzies,Lady Clark Of Calton |
| Judgment Date | 13 May 2016 |
| Neutral Citation | [2016] HCJAC 46 |
| Published date | 13 May 2016 |
| Docket Number | HCA/2015 |
| Court | High Court of Justiciary |
| Date | 13 May 2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 46
HCA/2015/002080/XC
Lady Paton
Lord Menzies
Lady Clark of Calton
OPINION OF THE COURT
delivered by LADY PATON
in
APPEAL AGAINST CONVICTION
by
BRIAN NEWMAN
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: D Hughes; Paterson Bell, Edinburgh (for Barnetts, Kilmarnock)
Respondent: Farquharson AD; Crown Agent
13 May 2016
Introduction
[1] The appellant was born on 6 June 1956. On 8 May 2015, he was convicted after trial of a series of sexual offences committed against boys residing in a children’s home where he had been employed as a care worker. He was sentenced to 13 years imprisonment.
[2] The offences of which the appellant was convicted comprised lewd and libidinous practices (charges 2, 3, and 12); indecent assaults (charges 4, 7, 8, and 10); attempted penetration of the boy’s anus with his penis (charge 5); and sodomy (charges 9 and 11). The charges, abbreviated to some extent, were as follows:
Charge 2: 10 October 1991 to 6 March 1992, lewd and libidinous practices towards AA aged 13, “and did make comments of an inappropriate sexual nature to him, enter his private bedroom while he appeared to be sleeping, sit on the bed, place your arm on his penis, touch him on the body, place your hands under his bed covers, handle his penis, kiss him on the mouth and cuddle him.”
Charge 3: 8 October 1992 to 28 August 1994, lewd and libidinous practices towards BB aged 12-13, “and did enter his private bedroom there while he was sleeping, sit on the bed, place your hands under his bed covers, handle his penis under his underwear and masturbate him, place his penis in your mouth, lower your trousers and underwear, place his hand on your penis, attempt to induce him to place your penis in his mouth and cause him to masturbate you.”
Charge 4: 29 August 1994 to 25 April 1996: indecent assaults on BB aged 14-16, in particular “enter his private bedroom while he was sleeping, sit on the bed, place your hands under his bed covers, handle his penis under his underwear and masturbate him, place his penis in your mouth, lower your trousers and underwear, place his hand on your penis and cause him to masturbate you.”
Charge 5: on an occasion between 29 August 1994 and 28 August 1995, assault BB aged 14, “and did whilst he was sleeping and incapable of consenting, remove his clothing, lie on top of him, attempt to penetrate his anus with your penis and attempt to have unnatural carnal connection with him.”
Charge 7: 2 February 1994 to 23 August 1995: indecent assaults on CC aged 15-17, “and did make comments of an inappropriate sexual nature, grab his testicles over his clothing, place your hand in his lower clothing and handle his penis, touch his nipples, enter his private bedroom, expose your penis, and you did place your penis in his mouth.”
Charge 8: 23 March 1995 to 19 January 1996: indecent assaults on DD aged 14-15, “and did rub his penis over his clothing, handle his penis under his clothing.”
Charge 9: on an occasion between 23 March 1995 and 19 January 1996: assault DD aged 14-15 “and did rub his body, remove his clothing and penetrate his anus with your penis and have unnatural carnal connection with him to his injury.”
Charge 10: 24 January 1995 to 30 September 1997: indecent assaults on EE aged 15-17 “and did, in his private bedroom and in a staff room, place your hands under his bed covers, handle his naked penis and masturbate him, rub your body against his, and rub him against your body, place his penis in your mouth, kiss him on the mouth, lower your trousers and underwear, place his hand on your penis and cause him to masturbate you, attempt to place your penis in his mouth, rub your body against his and cuddle him.”
Charge 11: on an occasion between 1 May 1997 to 30 September 1997: assault EE aged 17 “and did rub yourself against him, and penetrate his anus with your penis and have unnatural carnal connection with him.”
Charge 12: 21 November 1995 to 23 June 1996: lewd and libidinous practices towards FF aged 11-12 “and did lift up his T-shirt and blow on his stomach, enter his private bedroom there and whilst he was sleeping, pull down his clothing and you did masturbate his penis.”
Charges 5, 9 and 11 involved acts (or attempted acts) of penetration of the boy’s anus with the appellant’s penis.
[3] The appellant appeals against conviction. Each ground of appeal alleges a misdirection by the trial judge. Counsel submitted that the nature and number of errors created confusion on key aspects of the case, and that the grounds of appeal, both separately and cumulatively, contributed to a miscarriage of justice.
Ground (a) The judge’s charge directed the jury to ignore the defence contention that the complainers were motivated by a desire for money.
[4] At pages 2-3 of his charge, the judge directed the jury as follows:
“ … Evidence is the evidence the witnesses give when they give their evidence in the witness box. It’s their answers. It’s what they say that matters, … their answers to questions, not the questions themselves. Though … if a question is put to them, and they agree with it, well then of course that’s part of their evidence; but if a question is put to them and they don’t agree with it, then the question doesn’t have any … status as evidence”
[5] At page 8 of his charge, the judge further directed the jury:
“ … If you reject a witness’s evidence or part of it, it doesn’t prove that the opposite of what they’ve said is true. Any evidence you reject simply falls to be ignored and left out of account altogether. An obvious example is where a person denies allegations put to him and, for example, you have the various boys being asked whether they were … it was being suggested that they were … out for, for monetary gain from making these allegations and they denied it, if I recall correctly. It’s up to you whether you think they were telling the truth, but if you didn’t think they were telling the truth, it wouldn’t follow that there was any evidence they were going out for monetary gain. You simply put it out of account altogether. Treat them simply as allegations which are not supported by evidence.”
[6] We are not persuaded that this ground of appeal is well-founded. The charge must be read as a whole. The words challenged occurred in a passage where the trial judge explained to the jury the well-established rule that if they did not accept a piece of evidence, that did not mean that the opposite was true: they should simply set that piece of evidence aside. The judge took that particular cross-examination of the complainers, during which a possible motive behind their allegations was put to them, as an illustrative example, and explained that if the jury did not believe the boys’ denials, that did not mean that there was any positive evidence that their motive had been to make money. It should be added that there was, in fact, no other evidence which might have provided a basis for the conclusion that a complainer was simply making up the allegations for money. In the result, the passage in the judge’s charge cannot, in our view, be criticised.
Ground (b) The judge erred in rejecting the “no case to answer” submission in respect of charge 9.
[7] Counsel for the appellant submitted that the sole evidence in relation to charge 9 came from the complainer DD, who spoke of being intoxicated after a drunken night out, partially undressed, being at one point on the bed in the presence of the appellant, and waking up later feeling strange, with a “sore bum”. There was no other evidence, such as evidence of injury to his anal region. DD said in terms: “I don’t remember anything inappropriate”. He could not explain how the soreness had come about. Counsel submitted that the starting point for Moorov had to be a complete charge, and not a vague inferential charge which required support from other facts and circumstances.
[8] We accept that in the case of Moorov v HM Advocate 1930 JC 68, there was direct eye-witness evidence of each individual criminal act. However there is nothing in Moorov, or in the dicta of Hume, Alison and Dickson (on which that decision was based) to suggest that there must always be direct eye-witness evidence of a particular criminal act before that act can be used as a component in mutual corroboration. Decisions such as Lindsay v HM Advocate 1993 SCCR 868 and Mason & McDougall v HM Advocate 2008 SLT 656 paragraph 9 and 10 make it clear that identification by inference can found mutual corroboration. There is no reason in logic or principle why the position should be any different in relation to the commission of a crime. We note that in a recent decision, Lees v HM Advocate [2016] HCJAC 16, it was held that one of the sources of evidence which could be used in the application of the Moorov doctrine could be the hearsay evidence of a deceased person, using section 259 of the Criminal Procedure (Scotland) Act 1995. As Lord Carloway explained:
“ … [t]here is no requirement that the two sources of evidence be direct testimony from eye-witnesses. It is entirely legitimate to prove a case using, for example, one witness speaking to one incident and the hearsay evidence of a deceased speaking to a second incident.”
[9] In our view therefore the question arising in respect of charge 9 is whether there was sufficient evidence from DD which, if accepted by the jury, gave rise to an inference that he had been sodomised. If so, that evidence would then be capable of providing a basis for corroboration in terms of Moorov in the usual way.
[10] We answer that question in the affirmative. We understand from the judge’s report, and from the Advocate depute who conducted the trial (and argued this appeal) that DD gave evidence that:
- He was, at the relevant time, aged 14 or 15, and was living in the children’s home.
- He had been to the beach with BB, and had become very drunk on cider (which he had...
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