Wednesday, November 29th, 2023
SS v HM Advocate [2023] HCJAC 48
David Adams appeared as Counsel for the appellant in this successful appeal against conviction.
At trial, the Crown relied on the application of the Moorov doctrine as the basis for conviction. The jury were given correct directions regarding the application of the doctrine. The jury thereafter returned the following verdicts:
Charge 1 – complainer 1 - majority not proven
Charge 2 – complainer 2 – unanimous not proven
Charge 4 – complainer 3 – unanimous guilty
Charge 5 – complainer 3 – majority guilty with deletions
Such a verdict was incompetent, given that charges 4 and 5 involved the evidence of the same complainer.
Prior to the verdict being recorded, the trial judge directed the jury to withdraw to the jury room. She invited submissions from the parties. Thereafter, she repeated her directions regarding the Moorov doctrine, and the jury retired again. Thereafter, it returned the following verdicts:
Charge 1 – complainer 1 - majority guilty with deletions
Charge 2 – complainer 2 – majority not proven
Charge 4 – complainer 3 – majority guilty
Charge 5 – complainer 3 – majority guilty with deletions
The issue before the Appeal Court was whether, the jury having not followed the correct directions they received in relation to the Moorov doctrine, the trial judge should have:
1. directed that the verdict be recorded as one of acquittal, as was argued by the appellant at trial and on appeal; or
2. repeated the directions on mutual corroboration and asked the jury to retire for further consideration.
The Appeal Court held that the trial judge was wrong to proceed as she did. The necessary implication of the jury’s initial verdict was that it had not found the complainers in charges 1 and 2 credible and reliable, and as a result the appellant fell to be acquitted. Thus, a miscarriage of justice occurred, and the convictions were quashed.
The opinion of the court can be found here. This case was covered by Scottish Legal News and a copy of their article can be found here.