T.G. v. Her Majesty’s Advocate [2018] HCJAC 58

Note of appeal against conviction:- On 26 October 2017, at Glasgow High Court, the appellant was convicted of various offences:- (charge 1) on various occasions between 1986 and 1988 lewd, indecent and libidinous practices and behaviour on the son of the appellant’s partner; (charge 2) on various occasions between 1986 and 1988 physical assaults on the son of the appellant’s partner; (charge 5) on an occasion between 1989 and 1991 lewd, indecent and libidinous practices and behaviour on the daughter of the appellant’s partner; (charge 6) on various occasions between 1991 and 1997 indecent assaults on the daughter of the appellant’s partner; (charge 7) on various occasions between 1992 and 1997 indecent assault, attempted rape and rape of the daughter of the appellant’s partner; (charge 8) on various occasions between 1989 and 1998 physical assaults on the daughter of the appellant’s partner; and (charge 9) on an occasion in 1996 the clandestine injury of an adult complainer. Charges 3 and 4 were withdrawn by the Crown relating to allegations of lewd, indecent and libidinous conduct and behaviour and physical assaults relating to the daughter of the appellant’s partner at the same time and locus as the circumstances of charges 1 and 2 (relating to the son of the appellant’s partner). The appellant appealed against his conviction. The basis of the appeal related to the specification of the loci on the charges. In relation to charges 6 and 8 the jury had deleted reference to [I] Avenue, Port Glasgow. However, a question was asked by the jury during their deliberations as to whether they could add [I] Avenue, Port Glasgow to charges 1 and 2. They received further directions from the trial judge that they were entitled to amend the locus if they considered that the complainer had made an error in relation to his recollection of the place certain things happened and the jury subsequently added [I] Avenue, Port Glasgow to the original locus of [M] Road, Port Glasgow. The ground of appeal on behalf of the appellant was that the judge erred in allowing the jury to amend the indictment by adding a locus. It was contended that the appellant’s right to a fair trial had been compromised as the defence were prevented from leading evidence from the appellant’s mother to confirm that the complainer in relation to charges 1 and 2 had never been at the new locus, [I] Avenue, Port Glasgow, which was her address. It was further submitted that if the convictions for charges 1 and 2 were quashed then on the basis that charges 1 and 2 had been used to mutually corroborate charges 5 and 8, the convictions in relation to those latter charges should also be quashed. In the written argument and submission on behalf of the appellant the principal submission in relation to fairness became a subsidiary point and the main argument became one of competence, it being contended that amendment by the jury in the way they had was incompetent. It was conceded on behalf of the respondent that the trial judge had been incorrect to direct the jury that they could amend the libel with the insertion of a locus as they did as the only way a charge may be amended in that way is on the motion of the prosecutor in terms of section 96 of the Criminal Procedure (Scotland) Act 1995. It was further submitted on behalf of the respondent, however, that the precise address in Port Glasgow was not the main issue at the trial and the misdirection did not result in a miscarriage of justice and the convictions in relation to 1 and 2 (and consequently 5 and 8) should not be quashed. Here the court allowed the appeal in relation to charges 1 and 2. It was clear from the jury’s question and the verdict they returned that the offences had been committed not at [M] Road but at [I] Avenue and if they were not satisfied the conduct took place at the address libelled then it was not open for them to add in a locus and they ought not to have been so directed. The court in quashing the convictions in charges 1 and 2 did not agree with the submission made on behalf of the appellant (and conceded by the Crown) that quashing the convictions in relation to charges 1nd 2 would also prove fatal to charges 5 and 8. The court took the view that evidence the appellant had committed the offences in charges 1 and 2, but at [I] Avenue was available for the jury’s consideration and as they clearly took the view that the complainer on these charges was credible and reliable they were entitled to use that evidence as corroborative of the complainer’s evidence in relation to charges 5 and 8. The court quashed the conviction in relation to charges 1 and 2 but refused the appeal in so far as it related to charges 5 and 8.