Cjm V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lord Philip,Lord Clarke |
| Neutral Citation | [2012] HCJAC 83 |
| Date | 01 June 2012 |
| Year | 2012 |
| Published date | 23 July 2012 |
| Court | High Court of Justiciary |
| Docket Number | XC159/11 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Clarke Lord Philip | [2012] HCJAC 83 Appeal No: XC159/11 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL by CJM Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Crowe; Michael Allan, Aberdeen
Respondent: Mitchell, Q.C., A.D.; Crown Agent
1 June 2012
[1] The appellant was convicted after trial in the High Court in Inverness of four charges (as restricted) on the indictment against him. These were:
"(1) on an occasion between 21 May 1991 and 20 May 1995 both dates inclusive, at [an address in Buckie] or elsewhere you [CJM] did assault [KAC], then aged between 5 and 8 years, c/o Grampian Police, Elgin, place her on a bed, remove her lower clothing and place your private member against her private parts;
(2) on various occasions between 21 May 1991 and 20 May 1995, both dates inclusive, at [the same address in Buckie] or elsewhere you [CJM] did use lewd, indecent and libidinous practices and behaviours towards [KAC], then aged between 5 and 8 years, c/o Grampian Police, Elgin, kiss her on the mouth, lock her in a bathroom, expose your private member to her, induce her to insert your private member into her mouth and to perform oral sex on you;
(3) on two occasions between 15 September 1990 and 14 September 1992, both dates inclusive, at [the same address and at another address, both Buckie] you [CJM] did, whilst acting with others, assault [RCC], born 15 September 1978, c/o Grampian Police, Elgin ... and thereafter handle her breasts;
(4) on various occasions between 15 November 1994 and 14 November 1998, both dates inclusive, at [a yet further address in Buckie] you [CJM] did assault [ALW], born 15 November 1988 ... c/o Grampian Police, Elgin, expose your private member to her, rub her leg, handle her private parts, repeatedly insert your finger into her private parts, place her hand on your private member, induce her to masturbate you, induce her to insert your private member into her mouth and to perform oral sex on you and ejaculate into her mouth".
[2] Three further charges were withdrawn by the Crown. The trial judge sentenced the appellant to a cumulo term of six years' imprisonment on these four charges.
The applications and their disposal
[3] Prior to the trial the appellant had made an application under section 275(1) of the Criminal Procedure (Scotland) Act 1995 to admit evidence and allow questioning on various matters. These included the following matter:
"In September 2006 [ALW] [the complainer on charge (4)] 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 inquiry, there existed evidence that refuted the allegation. [ALW] was interviewed and finally admitted fabricating the complaint. She was charged with wasting police time."
[4] The Crown opposed certain aspects of the application, including the matter quoted. At a preliminary hearing on 6 January 2011 the judge refused that aspect of the application. In the court minutes he is recorded as having done so "for the reasons outlined by the Advocate depute". These reasons, as expressed in a written statement of the Crown's position, were:
"This is a collateral issue and ... inadmissible at common law. In any event it is not relevant to the issue for the jury. The matter is removed in time and character to the charges on the indictment."
[5] This decision was not at that stage appealed against. The trial diet was then imminent; the trial commenced, before a different judge, on 24 January 2011. On 25 January [ALW] was called as a witness for the Crown. At the close of her examination-in-chief counsel for the appellant renewed the application which had been made to and refused by the preliminary hearing judge. He submitted that, regard being had to the evidence-in-chief of the witness, there had been a material change of circumstances which warranted revisiting the application. The trial judge, having heard the Advocate depute in reply, refused the fresh application. The basis of his decision was that no special cause had been shown for presenting the fresh application in the course of the trial. The trial judge also indicated that he would not, in any event, have been inclined to grant the application on its merits.
[6] Prior to either of these applications the defence agent had, in response to enquiries made of the Crown, on 18 October 2010 received a letter from the procurator fiscal. This letter gave detailed information on various matters, including in paragraph 2 the incident on 12 September 2006. In summary the information concerning that incident was to the following effect: [ALW] and another young woman had late in the evening of that date arrived, in an apparently distressed condition, at a rural house complaining 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 female occupant of the house subsequently drove the young women home. The following day she telephoned the police enquiring about the welfare of these young women. No complaint had, however, been made by either of them to the police. They were subsequently traced and interviewed separately. [ALW] then gave a detailed account of being given, with her companion, a lift by a man she did not know and ultimately being subjected by him to sexual demands of the kind narrated earlier. She said that she wished to make a formal complaint about this conduct. A full police inquiry was then instituted, including attempts to identify possible suspects. [ALW] was interviewed again, this time by detective officers, when she reiterated her account of what had happened the previous evening. She also gave that account to her social worker. Later the same day the police succeeded in obtaining a statement from the other young woman. She refuted the version of events put forward by [ALW], stating that both she and [ALW] had previously prostituted themselves to the male in question; no abduction had taken place; they had accompanied him willingly to a wooded area on the pretext of intending to prostitute themselves to him again - although they had previously decided not in fact to do so. Two days later [ALW] was interviewed under caution in tape recorded conditions. The procurator fiscal's narrative continued:
"During the subsequent taped interview under caution by Detective Constable Clark, in the presence of Constable Theron, [ALW] readily admitted to having fabricated those aspects of her evidence relating to her alleged abduction and the unsolicited nature of the sexual demands made by the male, although other aspects were found to be factual."
[ALW] was subsequently cautioned and charged - presumably with wasting police time. So far as appears, she was not prosecuted for that offence.
[7] We were assured that the procurator fiscal's letter was before each of the preliminary hearing judge and the trial judge. In his report to this court the trial judge states:
"In the course of argument counsel had indicated that the information which the defence had was contained in the letter of 18 October 2010 ... No witnesses were presently available to speak to the matters referred to in paragraph 2 of the letter, if challenged. It was the intention of counsel to seek to confine questioning to an apparent acceptance by the complainer that she had not been truthful on the occasion in question. He had no wish or intention to seek to explore the background detail referred to in the letter. The Advocate depute, in opposing the application, argued that this was a collateral matter which related to a completely different time and to very different circumstances from the events of charge (4) and that if the application was allowed not only was there a real risk that the jury's attention would be deflected from the specific allegations before them but also that the complainer's dignity and privacy would be seriously invaded. It was pointed out that it was not entirely clear from the letter what exactly the complainer had apparently accepted was not true, ('although other aspects were found to be factual') and, more generally and more importantly, that if the matter was to be raised at all it would almost certainly be necessary, in fairness to the complainer, to investigate, to some degree at least, the background circumstances surrounding her relationship with the male in question at a time when, it seemed clear, she was, to a degree, out of control. These arguments appear to me to be persuasive."
The preliminary hearing judge, who had, it seems, had sight of the trial judge's report, reiterates in his report the terms of the minute recording the reasons for his refusal of the relevant part of the application. He does not expand on these reasons but says "I agree with [the trial judge]."
The submissions
[8] Mr Crowe for the appellant, who had appeared for him at the preliminary hearing and at the trial, submitted that the matter in question was not "collateral"; it was relevant to an issue at the trial, namely [ALW's] credibility and was thus admissible at common law. Reference was made to HM Advocate v Ronald (No.1) 2007 SCCR 451. If it passed that test, there was no question but that it had also passed the statutory tests under sections 274 and 275. On the basis of information which was not disputed by the Crown, the complainer had effectively confessed to having given to the police a fabricated account about an alleged sexual attack upon her. Reference was made to HM Advocate v A 2005 SCCR 593, especially per Lord Macphail at para [20]. It was both convenient and expedient to allow the testimony in question. [ALW's] evidence was critical to the Crown...
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