Shaban Ahmed V. Her Majesty's Advocate

JurisdictionScotland
JudgeLord Justice General,Lady Paton,Lord Nimmo Smith,Lord Osborne,Lord Bracadale
Judgment Date09 September 2009
Neutral Citation[2009] HCJAC 73
Published date09 September 2009
Date09 September 2009
CourtHigh Court of Justiciary
Docket NumberXC737/07

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Osborne

Lord Nimmo Smith

Lady Paton

Lord Bracadale

[2009] HCJAC 73 Appeal No: XC737/07

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

in

NOTE OF APPEAL AGAINST CONVICTION

by

SHABAN AHMED

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Jackson, Q.C., C.M. Mitchell; McClure Collins

Respondent: Prentice, Q.C., A.D.; Crown Agent

9 September 2009

Introduction
[1] On 16 August 2007, after trial in the High Court at Glasgow, the appellant was convicted of the rape on 18 June 2006 at Knightswood Park, Glasgow of LK ("the complainer").
He was sentenced to five years' imprisonment. He has appealed against his conviction on the basis that the trial judge misdirected the jury by telling them that they could have regard to a de recenti statement made by the complainer regarding the rape, which statement was spoken to in evidence by one of her friends, CC, but which the complainer herself denied making.

[2] This appeal originally called before a bench of three judges, who, on 12 November 2008, having heard submissions from both parties, remitted the case to a bench of five judges given the general importance of the issue in dispute (Ahmed v HM Advocate [2008] HCJAC 64).

Antecedents and background to the offence
[3] At the time of the offence the complainer, who was aged 15 years and 10 months, and CC, who was aged 14 years, were both pupils at a residential school, from which they absconded on 17 June 2006.
They caught a train to Glasgow city centre, where they met the appellant (then aged 33) and his friend who were both previously unknown to them and who offered to buy them some drink. The group entered the appellant's car. The complainer allowed the appellant to put his arm around her and kiss her, she having told him that she was 18 years of age. The appellant eventually drove the group to a public park in the west end of Glasgow, arriving there in the early hours of 18 June 2006. There was some dispute in the evidence about what was discussed in the car prior to the group entering the park. The appellant's position in his police interview was that the complainer agreed to have sex with him in return for £10. CC initially denied this claim, but in cross-examination accepted that such a conversation had taken place. The complainer admitted that the appellant had given her £10 after the rape, but denied that there had been any prior discussion in that regard.

Evidence of rape and of the de recenti statement
[4] The complainer gave evidence that once in the park she had gone to an area secluded by trees and bushes in order to urinate and that the appellant had come up to her, grabbed her arms, pulled her to the ground, put his hand over her mouth, lain on top of her and raped her.
She claimed that she struggled with the appellant, tried to push him away and told him to get off. The Crown relied on CC's evidence as corroboration, although there were some inconsistencies both within her evidence and when it was compared with the account given by the complainer. She spoke, inter alia, to having seen, from a distance, two figures together, which she took to be the appellant and the complainer, and to hearing the complainer scream and say "Get off me". When interviewed by police officers, the appellant, despite an initial denial, admitted having had sexual intercourse with the complainer but claimed that this was consensual. He lodged a special defence to that effect, but did not give evidence at his trial.

[5] After the incident the group returned to the car and the appellant drove back into the centre of Glasgow. The complainer gave evidence that, due to embarrassment, and the fact that she would not normally confide in her, she did not tell CC about the rape, although at one point in her evidence she said that she "never told her exactly what happened". CC gave evidence that, when the complainer returned, she "looked a state": she was shaking, her hair was a mess and she was crying. Unprompted, and without objection, she also spoke to the complainer informing her of the rape, claiming initially that this was after the appellant and his friend had gone back to the car and while she and the complainer were walking back into town. When her police statement was put to her, she accepted that she and the complainer had in fact returned to the appellant's car and that he had then driven them back into the centre of Glasgow. She later suggested that it may have been when they were back in the city centre that the complainer mentioned the rape. Both the complainer and CC described taking a bus to the outskirts of Glasgow, before going to the transport police and informing officers that they had absconded from school, to which they were returned. The complainer did not officially report the rape until she was questioned by members of staff who had been alerted to what happened by CC.

Submissions by the Advocate depute at trial and directions by the trial judge on the de recenti statement
[6] In his speech to the jury, the Advocate depute raised the issue of the de recenti statement, saying:

"And [CC's] evidence didn't finish there. She told you that something had changed when [the complainer] came back. [The complainer] was different. [CC] knew something was wrong, she said. She described [the complainer] as being, she said at some, at various points she was upset, she was quiet. At one point she said she was crying and she appeared in shock. In fact I think at one point, although it may have been (inaudible) at one time, she said that she had freaked out. And before they even got back, and this is important, before they'd even got back into the car, so it's almost immediately I would submit to you after the incident in the park, she told [CC] that Shaban had raped her.

Now is that the way someone would react if they'd just had consensual sex? Of course not. But it might be the way you'd expect them to react if they'd just been raped as [the complainer] described".

The trial judge gave the jury the following directions regarding the de recenti statement:

"Now, I've given you, as I said, a general rule which is that hearsay cannot be [had] regard to [by a] jury. I have identified one relevant exception. There is, perhaps, another exception which I should draw your attention to. ... It may be you come to the view that very ... very shortly after the events which, whatever it was that occurred in the park, near the trees, [the complainer] said to [CC] something along the lines of her having been raped. Well you can have regard to that as something that the alleged victim has said very shortly after the incident in question and as I say normally that would be inadmissible as hearsay, but in a case like this, because it is a very recent statement, it is admissible, but only for a limited purpose and the limited purpose is whether, or as a tool as it were, to help you decide whether or not [the complainer] was telling the truth when she came later to give evidence in, in the witness box. It is not, I have to express this, it is not corroboration ...".

[7] He also gave the standard directions that it was the jury's recollection of the evidence which mattered and that the weight to be given to the evidence and decisions about accepting or rejecting evidence were matters for them. In addition, given the age of the complainer and of the appellant at the time of the offence, he directed the jury that, by virtue of the Criminal Law (Consolidation) (Scotland) Act 1995, section 14, if they did not intend to convict the appellant of rape, they had to consider the statutory alternative of unlawful sexual intercourse with a girl under 16 years of age.

Submissions by parties
[8] Mr Jackson, on behalf of the appellant, submitted that, as a matter of logic and legal principle, a de recenti statement could not be relied on to bolster credibility where, as here, the complainer clearly denied making it (MacDonald v HM Advocate 2004 S.C.C.R. 100, per Lord MacLean at paras [9]-[10] cf. White v R [1999] 1 Cr.App.R. 153, per Lord Hoffmann at page 157).
Muldoon v Herron 1970 J.C. 30 was not authority for the contrary proposition: essential to the court's decision in that case was the witness's acceptance that she had made a statement identifying a suspect. The situation might be different where a witness could not recall having given a statement, although no concession was made in that regard. Any further erosion of the rule against hearsay should be firmly guarded against. That was seen in the statutory exceptions to that rule in the Criminal Procedure (Scotland) Act 1995 where the admission of prior statements was subject to strict conditions (sections 259 and 260; cf. Jamieson v HM Advocate (No.2) 1994 J.C. 251). Section 263 permitted a prior inconsistent statement to be put to a witness, but only to undermine her credibility; no comparison could be drawn with the circumstances of the present case. The only purpose of the de recenti exception was to permit proof that the injured party had been consistent in her account and thus to bolster her credibility: it was not primary evidence (Morton v HM Advocate 1938 J.C. 50, per Lord Justice Clerk Aitchison at page 53; Walker and Walker, The Law of Evidence in Scotland (3rd ed), para 8.3.1; Stair Memorial Encyclopaedia, Vol. 10, para 707). By dealing with the issue in combination with the complainer's distress the Advocate depute had failed to pay due regard to that distinction. The jury should have been told to ignore the de recenti statement. As the complainer's evidence was crucial, one could not say that the misdirection had not had a significant effect on the jury's decision (cf. White v R at page 162). The conviction of the appellant should be...

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