Burgh v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 20 January 1994 |
| Date | 20 January 1994 |
| Docket Number | No. 9. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Lord Fleming. Ld. Jamieson.
Evidence—Sufficiency—Corroboration—Panel charged with lewd practices against two young girls—One incident only in relation to each girl—Incidents closely connected in time and place—Whether evidence of one girl as to her experience corroboration of evidence of the other—Credibility—Statements made de recenti by girls.
A panel was convicted by a jury on a charge of using lewd, indecent and libidinous practices towards two young girls, two incidents only, occurring successively at the same place being libelled. He appealed to the High Court against his conviction on the ground that the Sheriff-substitute who presided at the trial had misdirected the jury to the effect (1) that they might, if they believed both girls, take the evidence of the one girl relating to the one incident as corroborating that of the other girl relating to the other incident, and (2) that evidence by the mother of one of the girls of statements made to her by both girls soon after the incidents also corroborated the girls' evidence.
The Court dismissed the appeal, holding (1) that, while in fact the girls' evidence was sufficiently corroborated otherwise, the two offences were so closely related in time, circumstances and character that the evidence of each girl could properly be used as corroborating the evidence of the other; and (2) that, although evidence of a de recenti statement was not, upon a strict interpretation of the law, corroboration, but merely tended to establish credibility, the misdirection could not have misled the jury and thereby caused any miscarriage of justice.
Moorov v. H. M. Advocate, 1930 J. C. 68, andMorton v. H. M. Advocate, 1938 J. C. 50,applied.
Alexander Leigh Henry Leith, Lord Burgh, was tried before a Sheriff-substitute (S. Macdonald) and a jury in the Sheriff Court at Aberdeen on an indictment at the instance of His Majesty's Advocate which set forth "that on 30th June 1943, in Den Wood, Hazlehead … you did use lewd, indecent and libidinous practices and behaviour towards M. J. … aged nine years … and E. R. aged nine years" in a manner described.
At the trial, the two girls gave evidence that they had been playing together at the time and place mentioned in the libel and were joined by the accused. Each girl also gave evidence of the acts of the accused towards herself, and that the other girl had been alone for some time with the accused. One girl also spoke to having seen the accused in a certain position relative to the other girl. The mother of one of the girls gave evidence of a statement made to her by both girls shortly after the events. There was also corroboration of the evidence of one of the girls in the discovery by the police of seminal fluid at thelocus.
In the course of his charge to the jury, the Sheriff-substitute, after pointing out that the evidence of one witness alone was not sufficient to justify a conviction, said:—"If you believe these two girls and, after all, that is the fundamental part of the corroboration—that you believe them—if you do believe them then there is corroboration of what they say, that the same kind of thing happened to them both." Thereafter he referred to the Later, after referring to the evidence of the mother relating to the de recenti statement made to her by the two girls, he said:—"Where you have the evidence of young children stating (as they do here) as to what took place in the way of an indecency committed upon them—where you have that and they go home immediately to their parents and tell their parents what took place, then, if their parents appear in Court and tell the story which entirely supports the evidence of the girls as they have given it in Court, then that may be taken as corroboration. … You must, first of all, believe the girls. Unless you do that, then you can't accept the statements from the parents, because it would then result in a miscarriage of justice."
The jury having found the accused guilty as libelled, he appealed against his conviction under the Criminal Appeal (Scotland) Act, 1926, on the grounds, inter alia:—"(2) That the presiding judge misdirected the jury by directing them that a statement madede recenti by the victim in a case such as was before the jury afforded corroboration of the witness's evidence. (3) That the presiding judge misdirected the jury by directing them that, similar indecent acts having been spoken to by each of the girls concerned, their stories were thus mutually corroborative."
The case was heard before the High Court of Judiciary on 18th January 1944.
LORD JUSTICE-CLERK (Cooper).—The appellant was convicted on indictment before a Sheriff and jury at Aberdeen of having used lewd, indecent and libidinous practices towards two small girls. This conviction was originally attacked on seven grounds, but Mr Duffes, in the exercise of a wise discretion, has confined himself to reasons (2) and (3).
According to the evidence the indecencies were practised on the two children successively about the same time inside a hut of branches and bracken which the children had constructed in a wood for the purposes of a picnic. Each child spoke with circumstantiality to the practices used against herself; and though neither of them was continuously in the hut throughout the relevant period, and did not see all that happened, each gave specific incriminating evidence corroborative of the practices used against the other. I stress this point, for the Sheriff was in my view unduly...
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Reference By Hma Against Clb
...1928 JC 39, although it supports the alternative view, along with Anderson v McFarlane (1899) 1 F (J) 36, Morton and Burgh v HM Advocate 1944 JC 77. McLennan is not cited in the fifth edition. Renton and Brown [54] Robert Renton and Henry Brown were very experienced procurators fiscal. Thei......