C.j.m. V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Cosgrove,Lord Justice Clerk,Lord Menzies,Lord Clarke,Lord Brodie |
| Neutral Citation | [2013] HCJAC 22 |
| Date | 14 February 2013 |
| Published date | 14 February 2013 |
| Court | High Court of Justiciary |
| Docket Number | XC159/11 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Clarke Lord Menzies Lord Brodie Lady Cosgrove | [2013] HCJAC 22 Appeal No: XC159/11 OPINION OF LORD CARLOWAY, the LORD JUSTICE CLERK in the APPEAL AGAINST CONVICTION by CJM (No 2) Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: K Stewart, QC, Crowe; John Pryde & Co SSC (for Michael S Allan, Aberdeen)
Alt: Wade, AD; the Crown Agent
14 February 2013
Background
[1] This Opinion follows upon that of the court dated 1 June 2012 ([2012] HCJAC 83) and relative interlocutor, remitting the appeal to a bench of five judges. Although the scope of the remit does not appear to have been defined, despite the precise terms of that interlocutor, in general terms it was taken to be the consideration and determination of the admissibility of evidence tending to show that an alleged victim of sexual assault had made a false allegation of sexual assault on another occasion.
[2] The appellant was convicted of four charges at Inverness High Court on 28 January 2011. The first two charges involved, respectively, an assault upon, and lewd, indecent and libidinous practices and behaviour towards, a girl, namely AB, then aged between 5 and 8, in the years 1991 to 1995 at an address in Buckie. The jury found that the appellant had sexually abused her at her home. The most serious episodes involved the appellant inducing her to perform oral sex upon him and pushing his private member against her private parts. The third charge found proved was that on two occasions, between 1990 and 1992, at the same and at another address in Buckie, the appellant had indecently assaulted the sister of AB, who was then aged between 12 and 14, by handling her breasts.
[3] The present appeal is principally concerned, however, with the fourth charge. The complainer, namely CD, is a relative of the appellant and the parts of the libel, which the jury accepted, involved the appellant regularly indecently assaulting her in the years 1994 to 1998, when she was aged between 6 and 10. The locus was the home of the complainer's grandparents in Buckie. The episodes commenced with the appellant rubbing the complainer's thigh, leg and private parts under her clothes and progressed to episodes during which he would insert his finger into her private parts. He induced the appellant to handle his private member and to perform oral sex upon him. The complainer made no report of these matters until 2008, when she had reluctantly given a "full statement" to the police. There was undisputed evidence that the complainer had had significant problems during her life. From 1997 to 2004 she, and AB, had been involved with social work services, medical and other health professionals and had required references to a child psychiatrist.
Section 275 Application
[4] In advance of the trial, the appellant made an application under section 275(1) of the Criminal Procedure (Scotland) Act 1995 seeking permission to adduce evidence, and to allow questioning, on a number of matters, including the following:
"(c) In September 2006 [CD] made an allegation that she and a female friend had been abducted by a male in a car and driven to a wooded area. There, forceful sexual demands were made of them which included performing sex on each other and on him. After a full police enquiry, there existed evidence that refuted the allegation. [CD] was interviewed and finally admitted fabricating the complaint. She was charged with wasting police time".
The details had been provided to the defence by the local procurator fiscal, in terms of a letter dated 18 October 2010.
[5] The incident had involved CD and another girl presenting themselves at the door of a house in the country in an apparently distressed state. They had complained to the occupant that a male, from whom they had accepted a lift, had driven them to a wooded area against their will and there asked them, for payment, to perform sexual acts on one another and on him. The occupant had driven the girls home, but, on the following day, she had telephoned the police enquiring after their welfare. No complaint had been made by the girls to the police. They were, nevertheless, traced and interviewed separately. CD gave an account, which was similar to that reported to the occupant. She stated that she wished to make a formal complaint and a police enquiry was instituted. The other girl refuted the version given by CD and stated that both she and CD had previously prostituted themselves to the male in question. No abduction had taken place. Rather, they had willingly accompanied the male to a wooded area intending to prostitute themselves to him again. They had not, however, done so. Two days later, CD had been interviewed under caution and, according to the procurator fiscal:
"During the subsequent taped interview under caution ... [CD] readily admitted to having fabricated those aspects of her evidence relating to her allegation of abduction and the unsolicited nature of the sexual demands made by the male, although other aspects were found to be factual".
CD was subsequently cautioned and charged, presumably with wasting police time, but no prosecution was instituted.
[6] In a remarkably brief report from the judge at first instance, who refused this part of the section 275 application on 6 January 2011, it is stated that the basis for refusal was "for the reasons outlined by the advocate depute". These reasons, as minuted, were that:
"This is collateral and inadmissible at common law. In any event it is not a relevant issue for the jury. The matter is removed in time and character to the charges on the indictment".
[7] In the course of the trial, which commenced less than three weeks later, the appellant attempted to re-raise the issue at the completion of the complainer's evidence-in-chief. Although both the reasons and the statutory basis for doing so are obscure, the matter seems to have arisen as a result of the complainer testifying that she had not been "raped" by the appellant, notwithstanding the allegation to that effect then included in the libel. The advocate depute had put to her an apparently contrary position, as recorded in a police notebook, to the effect that she had used the word "rape", when speaking about the abuse perpetrated upon her by the appellant. The complainer had explained that she would have used that word to describe any sexual activity carried out against her will. She had said that she may have used it at the stage of speaking to the police. The application was again refused, on the basis that no special cause (1995 Act s 275B(1)) had been advanced for presenting it in the course of the trial.
[8] The trial judge went on to state that he would not, in any event, have been inclined to grant the application. There were no witnesses present to speak to the matters averred in the application, other than the complainer herself. The trial judge regarded, as persuasive, arguments that the issue was collateral, having regard to the time and circumstances of the charge. He considered that there was a real risk that the jury's attention would have been deflected from the specific allegations before them and that the complainer's dignity and privacy would also have been seriously invaded (s 275(1)(c), (2)(b)). It was not clear, from the procurator fiscal's letter, what the complainer had accepted had not been true and what had been found "to be factual". Were the matter to be explored in evidence, the background circumstances, including the complainer's relationship with the male in question, would require to be examined.
Note of appeal and submissions
Appellant
[9] The ground of appeal, so far as relevant, is in the following terms:
"(e) It is submitted that evidence sought to be admitted relating to the aforesaid false accusation to the police was admissible at common law. Whilst a collateral issue, in the interests of justice, this evidence should have been before the jury to allow a balanced assessment to be made of the said complainer's credibility and reliability. This was not a collateral issue that would have taken up a great amount of court time or distracted the jury as the facts were well settled. The three cumulative tests set out in section 275(1) were met. The false allegation contained the considered and detailed untruths as opposed to it being a 'spontaneous impetuous outburst' which would be inadmissible (Cassells v HMA 2006 SCCR 327)".
[10] It was accepted that, when considering a section 275 application, it was necessary for the court to determine at the outset whether the evidence proposed to be adduced was admissible at common law. If it was not admissible at common law, for example because it concerned a collateral issue, then section 275 could not render it admissible, since the provision was designed to restrict evidence and not to remove common law prohibitions.
[11] The general rule at common law was that evidence of character was inadmissible as collateral. This rule was based on expediency. It was considered inexpedient to admit evidence of a collateral fact because, while it was perhaps not wholly irrelevant, it had only an indirect bearing on the matter before the jury. The evidence would take up a great amount of court time and risk confusing the jury, by distracting them from the true issue (Walker and Walker: Evidence (2nd ed) para 7.1.1; A v B (1895) 22 R 402, LP (Robertson) at 404).
[12] Sections 274 and 275 were intended both to protect a complainer, in so far as this was possible, from embarrassing and often demeaning questioning and to reduce the risk of prejudice against a complainer being created in the mind of the jury. They were introduced to dispel the "twin myths" that, first, "unchaste women" were more likely to consent to intercourse and, second, that such women were "less worthy of belief" (R v Seaboyer (1991) 83 DLR (4th) 193, McLachlin J at 258). The...
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