McBrearty v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 13 April 2004 |
| Neutral Citation | 2004 SCCR 337 |
| Date | 13 April 2004 |
| Docket Number | No 14 |
| Court | High Court of Justiciary |
JC
LJ-C Gill, Lord MacLean and Lord McCluskey
Justiciary - Procedure - Inappropriate comments made by Advocate-depute - Trial judge's directions to jury - Whether directions were adequate - Whether miscarriage of justice
Justiciary - Procedure - Conduct of defence case - Failure to pursue line of investigation prior to trial - Failure to cross examine or lead evidence about a specific matter at trial - Whether accused denied a fair trial
The appellant was tried on indictment on 21 charges of sexual offences between 1961 and 1968 involving eight complainers. The appellant had been employed as a house parent at a residential accommodation for children and the complainers had been under his care. The appellant was convicted of eight charges involving three separate complainers, KM, LJ and AF.
The complainers AF and LJ were described by the trial judge as good witnesses. KM, however, was described as a difficult witness of limited education and below average intelligence. The transcript of her cross-examination showed her evidence was evasive, untruthful and unsatisfactory and during the trial she had to be warned by the trial judge to tell the truth. It was not in dispute that KM had numerous convictions for dishonesty.
The appellant gave evidence that he was wholly innocent of the charges. The appellant in his defence case preparation had uncovered considerable documentary evidence prior to trial of KM's unreliability which included reference to serious psychiatric problems for which she had received support from the psychiatric services. At trial no psychiatric evidence was put before the jury. KM had also in a statement to police referred to another occasion in which she had been raped by the appellant after having been raped earlier on that day by another member of staff, David the gardener, who she said had subsequently been convicted of this offence. The Crown accepted that there was no trace of any such conviction or sentence. Moreover there was no record of there having been a gardener named David working at the relevant time. In cross-examination KM denied having made that police statement.
In addressing the jury the Advocate-depute dealt with difficulties in KM's evidence and with each of the points put to her by the defence about which he made certain remarks not supported by evidence. The trial judge directed the jury to reach their decision only upon the evidence and specifically warned them from drawing conclusions from speculation.
After trial the appellant was sentenced to a cumulo term of 12 years' imprisonment. The appellant appealed against conviction and sentence. The principal point in his appeal against conviction was that those representing the appellant failed properly to follow up on an important line of investigation, namely the obtaining of an expert opinion on the mental condition of KM and failed to put to her or lead evidence that she had made a false allegation of rape against the gardener.
After the appeal was lodged the appellant instructed a psychiatrist who studied the case papers and examined KM. She concluded, inter alia, that KM had a pathological predisposition to lie for her own advantage, that she suffered from an extremely severe personality disorder with marked histrionic features, that she was unable to distinguish between reality and fantasy and that her account of her memories was consistent with false memory syndrome. The Crown instructed a clinical and forensic psychologist who broadly supported the conclusions drawn of KM.
There were two grounds of appeal: (1) whether the trial judge erred in failing adequately to correct the remark made by the Advocate-depute; and (2) whether the legal representation of the appellant was defective in respect of the failure of counsel to (a) pursue a line of evidence to the effect that KM was a pathological liar and (b) cross-examine KM and lead evidence about her false allegation of having been raped by the gardener.
Held that: (1) the strong directions given by the trial judge had been more than adequate to deal with the problem caused by the Advocate-depute's comment (which should not have been made) and sufficiently emphasised to the jury that they should decide the case on evidence and not on speculation (para 33); (2) the question of whether or not to instruct an expert psychiatric or psychological assessment of KM's capacity for truthfulness had been carefully considered and rejected (para 57); (3) the decision had been a reasonable and responsible exercise of counsel's discretion and judgment and cannot be said to have prejudiced the essential fairness of the trial (para 57); (4) in respect of the conduct of a trial an appeal court ought not too readily to substitute its own judgment for that made by counsel at the trial as there was a danger that decisions made under pressure during the trial could be assessed out of their proper context when recollected in tranquillity in the appeal court (para 60); (5) having regard to the admissions that senior counsel had obtained from KM, that whatever approach other counsel might have taken, his decision not to press cross-examination further was within the legitimate scope of his discretion (para 60); (6) these convictions did not result from any deficiency in representation (para61).
Observed per the Lord Justice-Clerk (Gill) that counsel should always bear in mind that as an officer of the court he had certain responsibilities to ensure that such appeals were decided properly and justly; that if counsel were to withhold from the court an explanation that only he could give, there was a serious risk that the court may be unable to decide the appeal with proper knowledge and understanding of the case (para 64).
SAMUEL MCBREARTY was charged on an indictment at the instance of Colin Boyd QC, Her Majesty's Advocate, the libel of which set forth two charges of rape, nine charges of lewd, indecent and libidinous practices, nine charges of assault and one charge of shameless indecency. The pannel pled not guilty and the cause came to trial before Lord Reed and a jury in the High Court of Justiciary at Glasgow. On 7 September 2001 the pannel was convicted of two charges of rape and six charges of lewd and libidinous practices. The pannel was sentenced to a cumulo term of 12 years' imprisonment.
The pannel thereafter appealed against conviction and sentence to their Lordships in the High Court of Justiciary.
Cases referred to:
AJE v HM AdvocateSC 2002 JC 215
Anderson v HM AdvocateSC 1996 JC 29
Campbell, Steele and Gray v HM Advocate 2004 SLT 397
D v HM Advocate 2003 SLT 1146
Ditta v HM AdvocateUNK 2002 SCCR 891
Garrow v HM AdvocateUNK 2000 SCCR 772
Gilgannon v HM AdvocateUNK 1983 SCCR 10
Green v HM AdvocateUNK 1983 SCCR 42
Grimmond v HM Advocate 2002 SLT 508
Hemphill v HM AdvocateUNK 2001 SCCR 361
Jeffrey v HM Advocate 2002 SLT 1407
McIntyre v HM AdvocateSC 1999 JC 232
McKinlay v British Steel Corp 1988 SLT 810
RobinsonUNK [1994] 3 All ER 346
Toohey v Metropolitan Police CommissionerELR [1965] AC 595
Winter v HM AdvocateUNK 2002 SCCR 720
The cause called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Gill), Lord MacLean and Lord McCluskey for a hearing, on 18 March 2004 -
At advising, on 13 April 2004, the opinion of the Court was delivered by the Lord Justice-Clerk (Gill) -
OPINION OF THE COURT -
[1] The appellant was tried at Glasgow High Court in September 2001 on 21 charges. There were two charges of rape, nine charges of lewd, indecent and libidinous practices, nine charges of assault and one charge of shameless indecency. The offences libelled were alleged to have been committed against girls at Quarrier's Homes, Bridge of Weir, over the years 1961 to 1968. There were five complainers. Before the trial, one of them, JF, became too ill to give evidence. The Advocate-depute dropped the charges relating to her. At the close of the Crown case he withdrew four charges of assault in relation to KM, two charges of assault and one charge of shameless indecency in relation to LJ, one charge of assault in relation to AF, and one charge of assault and two charges of lewd, indecent and libidinous conduct in relation to JS.
[2] On 7 September 2001 the appellant was found guilty of the remaining charges, which related to KM, LJ and AF. We have set out charge 3 in the restricted form in which the jury convicted him.
'(1) On various occasions between 1 October 1961 and 31 December 1964, both dates inclusive, at Quarriers Homes, Bridge of Weir, you did assault [KM], born 11 March 1950, … enter her bed, lie on top of her, place your hand over her mouth, force her legs apart and rape her;
-
(2) On various occasions between 1 October 1961 and 10 March 1962, both dates inclusive, at Quarriers Homes, Bridge of Weir, you did use lewd, indecent and libidinous practices and behaviour towards [KM], born 11 March 1950, … and did enter her bedroom, partially remove or lift up her night dress and touch her on the legs and buttocks;
-
(3) On various occasions between 11 March 1962 and 31 December 1964, both dates inclusive, at Quarriers Homes, Bridge of Weir, you did use lewd, indecent and libidinous practices and behaviour towards [KM], born 11 March 1950, … then a girl of or above the age of 12 and under the age of 16 years and did enter her bedroom, partially remove or lift up her night dress, touch her on the legs and buttocks, enter a bathroom while she was partially clothed, force her to kneel on the floor, pull her by the hair and insert your private member into her mouth:
CONTRARY to the Criminal Law Amendment Act 1922, Section 4(1); …
-
(8) On various occasions between 1 October 1961 and 1 April 1968, both dates inclusive, at Quarriers Homes, Bridge of Weir, you did assault [LJ], born 14 March 1951, … remove her from a bed and force her to accompany you to a bathroom, lie on...
To continue reading
Request your trial
-
Appeal Against Sentence By Her Majesty's Advocate Against Gordon Collins
...The appellant’s appeal against the sentence of 6 years’ imprisonment was refused (at [2]). [33] The appellant in McBrearty v HM Advocate, 2004 JC 122 was convicted after trial at the High Court of two charges of rape and six charges of lewd and libidinous practices committed between 1961 an......
-
William Beck V. Her Majesty's Advocate
...that, if a decision had been taken not to call Mr L, this had been "so absurd as to fly in the face of reason" (McBrearty v HM Advocate 2004 SCCR 337, LJC (Gill) at para [36]; see Anderson v HM Advocate 1996 SCCR 114, LJG (Hope) at 131-132). Any decision not to call him was a tactical one i......
-
C.j.m. V. Her Majesty's Advocate
...in relation to the particular evidence to be led, by the new section 275C of the 1995 Act), was approved in McBrearty v HM Advocate 2004 JC 122 (LJC (Gill) at para [48]), where the trial had also pre-dated the substitute sections. The Lord Justice Clerk distinguished (at para [49]) the lead......
-
Alexander Touati+russell Gilfillan V. Her Majesty's Advocate
... ... The approach was to minimise the second appellant's involvement by contrasting it with the involvement of the first appellant. It was not for the trial judge to introduce issues not raised by defence counsel ( McBrearty v H.M. Advocate 1999 S.C.C.R. 122). Reference was also made to Broadley v H.M. Advocate 1991 S.C.C.R. 416. On the evidence culpable homicide, on the basis of the qualitative act of the second appellant (leaving aside any question of provocation), was not open in his case. As regards ground ... ...
-
Corroboration in Scots Law: “Archaic Rule” or “Invaluable Safeguard”?
...have also testified on whether a witness suffering from a severe personality disorder was a pathological liar (McBrearty v HM Advocate 2004 JC 122) and on whether a complainer suffering from bipolar illness exhibited false memory syndrome (HM Advocate v A 2005 SLT 975). However, the use of ......