Reference to record justified by accused saying he had never been in court
An unprompted statement by an accused in evidence that he had never been in court entitled the Crown to seek to lead evidence that he had previous convictions, the Criminal Appeal Court has held.
Lady Dorrian, the Lord Justice Clerk, Lord Menzies and Lord Turnbull gave the decision in refusing the appeal against conviction of David Penman, on 11 historic charges of sexual offences against fellow pupils at the Royal School for the Blind, Edinburgh, between 1987 and 1991.
On four of the charges there was direct corroborative evidence; the Crown relied on the Moorov rule in respect of the others. At trial the accused denied his guilt and asserted that the complainers were lying. In cross-examination the advocate depute put it to him tha tthat was a lot of witnesses to come to court and give evidence that wasn't true. He replied: "I've never been in court so I don't know in terms of size whether that would be a normal number of witnesses."
The Crown then argued that this should be taken as a statement of good character, which was false since the accused had previous convictions of a sexual nature. The Crown was allowed under s 266 of the Criminal Procedure (Scotland) Act 1995 to refer to these, and put the general terms of his convictions to the accused. He admitted that he had told lies about not being in court but said he had meant to say he had never been through a trial as he had pleaded guilty.
On appeal it was argued that the trial judge erred in concluding that the statement constituted evidence of the appellant’s own good character. In context it was obvious that he had meant to say he had not been to trial. The potential prejudice from revealing his record was out of proportion to any effect of the remark, as credibility and reliability had been very much in issue at trial.
Giving the opinion of the court, Lady Dorrian observed that while the Crown comment to the accused was more appropriate to a jury speech, it had not been objected to "and the appellant’s response was neither a necessary, nor even obvious, riposte. It... seems difficult to construe what he said, in volunteering that statement, as anything other than an attempt to put himself in a good light". He had given his evidence in measured fashion and his comment was not simply a passing or casual remark.
On the trial judge's exercise of his discretion in allowing the accused's record to be put to him, "it is necessary to take note of the limited extent to which the convictions were referred to. They were referred to for the purpose only of showing that the statement, on oath, 'I have never been in court' was a lie. The advocate depute was restrained in the way in which he proceeded, limiting himself to establishing that a lie had been told. The exercise showed that the appellant had lied on this matter, and the use made of the evidence by the advocate depute, and the directions as to the use to which the jury could put it, were restricted entirely to issues of credibility and reliability".
In any event the court would have found it "impossible" to say that a miscarriage of justice had resulted. The accused was able to give his explanation for the statement, there were eight different complainers along with corroborating evidence, and the jury acquitted on certain charges, which suggested "that the issue in question had not taken on an undue significance in the jury’s deliberations".