Ahmed v HM Advocate

JurisdictionScotland
CourtHigh Court of Justiciary
Judgment Date09 Sep 2009
Docket NumberNo 4

Appeal Court, High Court of Justiciary

Lord Justice-General (Hamilton), Lord Osborne, Lord Nimmo Smith, Lady Paton, Lord Bracadale

No 4
Ahmed
and
HM Advocate

Justiciary - Evidence - Admissibility - De recenti statement - Statement not spoken to by complainer - Whether admissible

The appellant was charged with rape. He admitted having had sexual intercourse but claimed that this was consensual. At trial evidence was led that the complainer and her friend CC had absconded from their residential school and had met the appellant and another, both unknown, in Glasgow city centre. The group had driven to a public park and as she was urinating in a secluded spot the complainer said she had been attacked and raped by the appellant. The Crown relied on the complainer's friend CC as corroboration. The complainer said in evidence that she had not confided in CC about what had happened. CC however described the complainer returning to the car in "a state" and then unprompted and without objection, she spoke to the complainer informing her of the rape. She claimed initially that this was after the appellant and his friend had gone to their car and she and the complainer were walking back into town, but after her police statement had been put to her, accepted that she and the complainer had returned to the appellant's car and had been driven by him back into the centre of Glasgow. She later suggested the complainer might have mentioned the rape, when they were back in the city centre. The complainer did not officially report the rape until she had been questioned by members of staff who had been alerted to what had happened by CC. The appellant was convicted of rape and appealed.

The appellant argued that, inter alia, the trial judge had misdirected the jury that they could take account of evidence of the alleged de recenti statement, albeit that the complainer denied making it. A de recenti statement could not be relied upon to bolster the credibility of a complainer who had clearly denied making it. Moreover, as the complainer's evidence was crucial, it could not be said that the misdirection had not had a significant effect on the jury's decision.

The Crown argued that there was no reason why the complainer had to give evidence of a de recenti statement where it could otherwise be proved. It was a question of fact, the jury being entitled to accept the complainer's evidence overall but to reject any denial of having made any de recenti statement. Such a statement was different from the normal exception to the rule against hearsay, it was a matter of weight, often bound up with the complainer's condition and appearance at the time of making it.

Held that: (1) the true value of a de recenti statement lay in the evidence of the recipient, that the statement had been made to him or her (para 12); (2) there had been no logical requirement that the complainer herself should testify as to having made the complaint to which the recipient has spoken to (para 13); (3) the authorities had not supported the proposition that it had been essential to the use of a de recenti statement that the complainer should herself testify that she made the statement (para 17); (4) the trial judge had very properly directed the jury that they could use the de recenti statement, if they accepted that it had been made, only for the limited purpose of deciding whether the complainer had been telling the truth about what had happened to her and not as corroboration of the complainer's testimony (para 20); and appeal refused.

Observed that it would be appropriate, at least where it is known that a recipient is expected to speak to the making of a statement de recenti, that the complainer should be examined on the matter (para 17).

MacDonald v HM AdvocateUNK 2004 SCCR 100 disapproved.

Shaban Ahmed was charged on an indictment at the instance of the Right Honourable Elish F Angiolini, QC Her Majesty's Advocate, the libel of which set forth an offence of rape. The appellant pled not guilty and the cause came to trial before Lord Brodie and a jury at the High Court of Justiciary at Glasgow on 13 August 2007. On 16 August 2007 he was convicted. On 19 September 2007 he was sentenced to five years' imprisonment.

The appellant thereafter appealed against conviction to their Lordships in the High Court of Justiciary. At a hearing on 12 November 2008 the appeal was remitted to a bench of five judges.

Cases referred to:

Ahmed v HM Advocate [2008] HCJAC 64; 2009 SCL 183; 2008 GWD 39-584

Jamieson v HM Advocate (No 2)SCUNK 1994 JC 251; 1995 SLT 666; 1994 SCCR 610

Lillyman v RELR [1896] 2 QB 167

MacDonald v HM AdvocateUNK 2004 SCCR 100; 2003 GWD 40-1074

Morton v HM AdvocateSC 1938 JC 50; 1937 SN 108; 1938 SLT 27

Muldoon v HerronSC 1970 JC 30; 1970 SLT 228

R v Kincaid [1990] 2 NZLR 1

R v Nazif [1987] 2 NZLR 122

R v WallworkUNK (1958) 42 Cr App R 153; 122 JP 299

Robertson (1842) 1 Broun 152

Timm v The Queen [1981] 2 SCR 315; [1981] 5 WWR 577

White v RELRWLRUNK [1999] 1 AC 210; [1998] 3 WLR 992; [1999] 1 Cr App R 153

Textbooks etc. referred to:

Bell, BR, A Supplement to Hume's Commentaries on the Law of Scotland Respecting Crimes (Bell & Bradfute, Edinburgh, 1844), p 288

Burnett, J, Treatise on Various Branches of the Criminal Law of Scotland (George Ramsay & Co for Archibald Constable & Co, Edinburgh, 1811), pp 553, 554

Dickson, WG, A Treatise on the Law of Evidence in Scotland (3rd ed, T&T Clark, Edinburgh, 1887), vol I, p 195, para 261

Macphail, ID, and Ruxton, L, "Evidence" in Stair Memorial Encyclopaedia: Laws of Scotland (Law Society of Scotland/Butterworths, Edinburgh, 1987), vol 10, para 707

Walker, AG, and Walker, NML, The Law of Evidence in Scotland (3rd Ross and Chalmers ed, Tottel, Haywards Heath, 2009), para 8.3.1

The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Hamilton), Lord Osborne, Lord Nimmo Smith, Lady Paton and Lord Bracadale, on 16 June 2009.

At advising, on 9 September 2009, the opinion of the Court was delivered by the Lord Justice-General (Hamilton)-

Opinion of the Court-

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 ([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...

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