Smith v Lees
| Jurisdiction | Scotland |
| Judgment Date | 28 January 1997 |
| Docket Number | No. 14. |
| Date | 28 January 1997 |
| Court | High Court of Justiciary |
FULL BENCH.
L J-G Rodger, L J-C Ross, Lord McCluskey, Lord Sutherland and Lord Gill.
Evidence—Sufficiency—Lewd and libidinous practices—Circumstantial evidence—Nature of circumstantial evidence—Distress—Whether distress sufficient to corroborate offence of using lewd, indecent and libidinous practices and behaviour
The pannel was tried on a charge of using lewd, indecent and libidinous practices and behaviour towards a 13-year-old girl. The pannel and his brother-in-law took five children, three girls and two boys to a campsite to camp out overnight. The children were related to the pannel and his brother-in-law. One of the girls was the complainer, aged 13. Two tents were pitched. The girls went to one and the boys to the other. The brother-in-law decided to stay outside beside the fire. The pannel chose to sleep in the girls' tent. He lay down between the complainer and one of her cousins. The complainer spoke to waking up and finding the pannel's penis on her hand, to his putting his other hand on top of her hand and to him moving his penis up and down against her hand. She stated that she was upset and deliberately made funny noises of the kind that she made when sleeping. She said she did this to pretend she was sleeping. According to her, she then left the tent and was crying and upset, too upset to tell her uncle, the pannel's brother-in-law. The brother-in-law spoke to hearing the funny noises which the complainer said she had made, to the complainer coming out of the tent quickly and to her having a tear in her eye. The sheriff found the evidence of her distress corroborated her account and found the charge proven against the pannel. The pannel appealed. In the appeal the Crown relied on the evidence of the complainer's distress alone as providing corroboration of her evidence.
Held (by a court of five judges) (1) that evidence of a complainer's distress could corroborate her evidence that she was subjected to conduct which caused her distress; but (2) that in itself the evidence of distress could not tell the jury or sheriff more than that something distressing occurred; (3) that to corroborate an eyewitness's evidence on a crucial fact, the corroborating evidence had to support or confirm the eyewitness's evidence by showing or tending to show that what the eyewitness said happened did actually happen; (4) that as there was no independent evidence supporting the allegation that the pannel had carried out the acts libelled, the evidence of the brother-in-law of the complainer's distress could not be used to support her evidence that specific acts were committed upon her by the pannel; and accordingly (5) that the brother-in-law's evidence of the complainer's distress could only corroborate her evidence that something distressing had occurred but could not in itself corroborate the crucial fact of whether the pannel had carried out the crime libelled; and appeal allowed.
Observed (1) that evidence of distress could also be used as corroboration of certain aspects of a complainer's account (such as lack of consent in a charge of rape) where the jury were satisfied that the distress arose spontaneously due to the nature of the incident rather than to the circumstances outside it and that the complainer was exhibiting genuine distress as a result of the alleged incident rather than feigning it; (2) that the fact that there could be difficulties in establishing the cause of the complainer's distress in particular circumstances was not a reason for excluding evidence of it in all cases.
Observed further (per Lord Justice-General (Rodger), Lord Justice-Clerk (Ross) and Lord Gill) that some observations inMackie v. HM AdvocateSC1994 JC 132 might have to be reconsidered at a future juncture.
Opinion (per Lord Sutherland) that the value of distress on its own as corroborative evidence should be limited to situations where it was necessary to establish the state of mind of the witness.
Stobo v. HM AdvocateSC 1994 JC 28 overruled.
Authorities considered.
Gregory Alexander Smith was charged in the sheriffdom of Lothian and Borders at Edinburgh on a summary complaint at the instance of Robert Ferguson Lees, procurator fiscal there, the libel of which set forth that “on 6 August in a tent at a campsite near the River Almond in the vicinity of Linns Mill, Newbridge, district of Edinburgh, you Gregory Alexander Smith did use lewd, indecent and libidinous practices and behaviour towards AC aged 13 years, c/o Lothian and Borders Police, Livingston, a girl above the age of 12 years and under the age of 16 years, and did place your hand upon her hand and cause her to handle your naked private member; contrary to the Sexual Offences (Scotland) Act 1976, sec 5.”
The pannel pled not guilty and the cause came to trial before the sheriff (A M Bell) on 5 and 20 December 1995. At the conclusion of the Crown case, the pannel made a submission of no case to answer in terms of sec 345A of the Criminal Procedure (Scotland) Act 1975. The sheriff repelled the submission.
The pannel thereafter led no evidence.
On being convicted, the pannel was sentenced to a period of imprisonment for three months on 16 January 1996.
The pannel thereafter requested of the sheriff that he state a case for the opinion of their Lordships in the High Court of Justiciary.
The terms of the stated case are sufficiently set forth in the opinions of their Lordships in the High Court of Justiciary.
Cases referred to:
Advocate (HM) v. YatesSC 1990 JC 378 (Note)
Begg v. TudhopeUNK 1983 SCCR 32
Bennett v. HM AdvocateUNK 1989 SCCR 608
Cannon v. HM AdvocateSC 1992 JC 138
Gillespie v. MacmillanSC 1957 JC 31
Gracey v. HM AdvocateSC 1987 JC 45
Horne v. HM AdvocateUNK 1991 SCCR 248
Jamieson v. HM AdvocateSC 1994 JC 88
Little v. HM AdvocateSC 1983 JC 16
Lockwood v. WalkerSC 1910 SC (J) 3
Mackie v. HM AdvocateSC 1994 JC 132
Manuel v. HM AdvocateSC 1958 JC 41
Martin v. HM AdvocateUNK 1993 SCCR 803
McLellan v. HM AdvocateUNK 1992 SCCR 171
Meredith v. LeesSC 1992 JC 127
Mongan v. HM AdvocateUNK 1989 SCCR 25
Moore v. HM AdvocateSC 1990 JC 371
Moorov v. HM AdvocateSC 1930 JC 68
Morrison v. HM AdvocateSC 1990 JC 299
Morton v. HM AdvocateSC 1938 JC 50
O'Hara v. CentralSC SMT 1941 SC 363
Scott v. JamesonSC 1914 SC (J) 187
Sinclair v. TudhopeUNK 1987 SCCR 690
Stephen v. HM AdvocateUNK 1987 SCCR 570
Stobo v. HM AdvocateSC 1994 JC 28
Susanna and the Elders (Old Testament: Book of Daniel 13 1–62)
Williamson v. WitherUNK 1981 SCCR 214
Wilson v. HM AdvocateUNK 1987 SCCR 217
Textbooks etc referred to:
Alison, Criminal Law, i, 244 and 247; ii, 551–552
Burnett, Criminal Law (1811), ch XX, pp 518 and 519
Hume, Commentaries, ii, 383 and 384
Hunter (ed), Justice and Crime "Corroboration" by Sheriff G H Gordon, QC, (1993), ch 3
Stair, Institutions (Tercentenary edn), IV, xi, 2
Walker and Walker on Evidence (1964), pp 404/406
The cause called before their Lordships in the High Court of Justiciary for a hearing on 3 July 1996. Eo die their Lordships remitted the cause to a bench of five Lords Commissioners of Justiciary in order that their Lordships could reconsider the case of Stobo v. HM AdvocateSC 1994 JC 28.
The cause called before their Lordships in the High Court of Justiciary, comprising the Lord Justice-General (Rodger), the Lord Justice-Clerk (Ross), Lord McCluskey, Lord Sutherland and Lord Gill for a hearing.
At advising, on 28 January 1997—
LORD JUSTICE-GENERAL (RODGER)—The appellant was charged on a summary complaint in the following terms: [His Lordship quoted same as set out supra and continued thereafter:]
The appellant pled not guilty and the trial eventually took place on 5 and 20 December 1995. At the conclusion of the Crown case the sheriff rejected a defence submission of no case to answer in terms of sec 345A of the Criminal Procedure (Scotland) Act 1975. No evidence having been led on behalf of the appellant, the sheriff found him guilty as libelled and adjourned the diet for the purpose of obtaining social enquiry, community service and psychiatric reports. On 16 January 1996 the sheriff sentenced the appellant to three months imprisonment.
The appellant appealed against both conviction and sentence by way of stated case. The appeal was first heard on 3 July 1996 when the court decided to remit it for a hearing before a bench of five judges so that the larger court might review the decision in Stobo v. HM Advocate.
The circumstances giving rise to the appeal can be shortly stated. The appellant and his brother-in-law, Mr C, took five children, three girls and two boys, to a campsite to camp out overnight. The children were related to the appellant and his brother-in-law. One of the girls was the complainer who was aged 13. Two tents were pitched. The girls went into one and the boys into the other. Mr C decided to stay outside beside the fire. The appellant chose to sleep in the girls' tent. He lay down between the complainer and one of her cousins.
In her evidence the complainer spoke to waking up and finding the appellant's penis on her hand, to his putting his other hand on top of her hand and to him moving his penis up and down against her hand. She said that she was upset and deliberately made funny noises of a kind which she had been told that she made when sleeping. She said she did this to pretend she was sleeping. According to the complainer, she then left the tent and was crying and upset, too upset to tell her uncle, Mr C. She said that the appellant came out of the tent later.
The other witness of importance for the Crown was Mr C. He spoke to hearing the funny noises which the complainer said that she had made and that this was the first time that he thought anything might be wrong in the tent. He also spoke to the complainer coming out of the tent quickly and to her having a tear in her eye. According to Mr C, when the appellant came out of the tent, he...
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