Patrick O'Neill Appellant against HM Advocate Respondent
| Jurisdiction | Scotland |
| Judge | Lord Justice-Clerk (Dorrian),Lord Menzies,Lady Clark of Calton |
| Judgment Date | 07 October 2016 |
| Neutral Citation | 2016 SCCR 558 |
| Docket Number | No 9 |
| Court | High Court of Justiciary |
| Date | 07 October 2016 |
[2016] HCJAC 86
Lord Justice-Clerk (Dorrian),
Lord Menzies and
Lady Clark of Calton
Masocha v HM Advocate [2016] HCJAC 15; 2016 SCL 369; 2016 GWD 7–144
Moynihan v HM Advocate [2016] HCJAC 85; 2017 JC 71
Justiciary — Procedure — Charge to jury — Prior inconsistent statement — Whether sheriff required to direct jury on significance of prior inconsistent statement — Whether direction required in context of charge as a whole — Whether absence of such direction material — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 263(4)
Patrick O'Neill was indicted at the instance of the Right Honourable Francis Mulholland QC, Her Majesty's Advocate, at the sheriff court in Aberdeen on an indictment the libel of which set forth, inter alia, charges of assault with intent to rape, assault and a contravention of sec 4(3)(b) of the Misuse of Drugs Act 1971 (cap 38). He was convicted following trial before the sheriff and a jury and appealed against his conviction to their Lordships in the High Court of Justiciary.
Section 263(4) of the Criminal Procedure (Scotland) Act 1995 (cap 46) provides, “In any trial, a witness may be examined as to whether he has on any specified occasion made a statement on any matter pertinent to the issue at the trial different from the evidence given by him in the trial; and evidence may be led in the trial to prove that the witness made the different statement on the occasion specified.”
The appellant was indicted at the sheriff court in Aberdeen on an indictment libelling, inter alia, a charge of assault with intent to rape. In the course of cross-examination of the complainer, a prior statement given by her was put to her by counsel for the appellant, the content of which was, in part, inconsistent with her testimony. The sheriff in her charge made no mention of the prior statement or the way in which the jury might use the evidence relating to it. The appellant was convicted and appealed to the High Court of Justiciary against his conviction and argued, inter alia, that the sheriff had erred in failing to direct the jury in relation to the prior inconsistent statement, which had been the basis for a significant part of the cross-examination. The Crown submitted that the issue of the credibility and reliability of the complainer had been adequately tested in cross-examination and was covered by the general directions relating to assessment of evidence.
Held that: (1) the extent to which a trial judge may be required to give a direction on the issue of prior statements would depend very much upon the circumstances of the case, the content of the statements, and the evidence given in relation to them, and the paradigm situation in which a direction would be required was where any issue arose as to the “adoption” of a statement by a witness; whether, and to what extent, a direction on the use of prior statements would otherwise require to be given would vary with each case (para 14); (2) the extent to which a direction might, in any individual case, be required, had to be seen in the context of the charge as a whole; in her charge, the sheriff had given no direction that, for conviction to follow, the jury required to accept the complainer as credible and reliable; the charge, as a whole, had been confusing; in all the circumstances, a direction on the prior inconsistent statement had been required, the misdirection by the sheriff in failing to do so had been a material one, and a miscarriage of justice had occurred (paras 17, 18); and appeal allowed.
Masocha v HM Advocate 2016 SCL 369 considered and
Moynihan v HM Advocate 2016 JC 71 applied.
The cause called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Dorrian), Lord Menzies and Lady Clark of Calton, for a hearing, on 21 September 2016.
At advising, on 7 October 2016, the opinion of the Court was delivered by the Lord Justice-Clerk (Dorrian)—
Opinion of the Court— [1] This appeal relates to a conviction on a charge of assault with intent to rape. The appellant had also been found guilty of simple assault, and being concerned in the supply of cannabis. He had pled guilty to a statutory breach of the peace. The grounds of appeal are: (i) that the sheriff erred in failing to direct the jury in relation to an inconsistent prior statement by the complainer to the police, which had been the basis for a significant part of the cross-examination, and referred to in the defence speech; and (ii) that in directing the jury in relation to distress, the sheriff had erred in failing to advise them that the distress required to be spontaneous, genuine and arising directly from the conduct complained of.
[2] The evidence of...
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