Graham v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice-Clerk (Dorrian),Lady Paton,Lord Turnbull |
| Judgment Date | 15 November 2018 |
| Neutral Citation | [2018] HCJAC 69 |
| Docket Number | No 4 |
| Court | High Court of Justiciary |
| Date | 15 November 2018 |
[2018] HCJAC 69
Lord Justice-Clerk (Dorrian), Lady Paton and Lord Turnbull
Advocate (HM) v Alongi [2017] HCJAC 18; 2017 SCCR 287; 2017 SCL 455; 2017 GWD 12–176
Al-Khawaja v UK (26766/05) [2011] ECHR 2127; (2012) 54 EHRR 23; [2012] 2 Costs LO 139; 32 BHRC 1; [2012] Crim. LR 375
Horncastle v UK (4184/10) [2014] ECHR 1394; (2015) 60 EHRR 31
McGlynn v UK (40612/11) [2012] ECHR 879
Santini v HM Advocate 2000 SCCR 726; 2000 GWD 16–647
Justiciary — Evidence — Hearsay — No sufficiency of evidence in the absence of hearsay — Whether hearsay statements decisive evidence — Whether sufficient safeguards to entitle jury to rely on hearsay evidence — European Convention on Human Rights and Fundamental Freedoms, Art 6(1)
Ryan Graham was charged on an indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, the libel of which set forth, inter alia, charges of sexual assault by penetration and rape contrary to secs 1 and 2 of the Sexual Offences (Scotland) Act 2009 (asp 9). The appellant pled not guilty and the cause came to trial before Temporary Judge Sean Murphy QC and a jury at the High Court in Glasgow. At trial, the Crown led hearsay evidence under sec 259 of the Criminal Procedure (Scotland) Act 1995 (cap 46). The appellant lodged a compatibility minute on the grounds that the admission of the hearsay evidence would infringe his right to a fair trial under Art 6 of the European Convention on Human Rights and Fundamental Freedoms. The trial judge rejected that plea. On 10 October 2017, the appellant was convicted of, inter alia, the offences of sexual assault by penetration and rape and sentenced to a period of ten years' imprisonment in respect of all charges. The appellant appealed against conviction and sentence to their Lordships in the High Court of Justiciary.
Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Article 6(3) provides that everyone charged with a criminal offence has certain minimum rights including, “(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.
The appellant was tried on an indictment containing, inter alia, charges of sexual assault by penetration and rape. The complainer died before trial. At trial, hearsay evidence was admitted in the form of statements made to the police by the complainer and recordings and transcripts of telephone calls to the emergency services. In addition, there was scientific evidence, evidence of distress and evidence of other witnesses in relation to both charges. For the charge of sexual assault by penetration, there was no clear evidence of penetration beyond that contained in the complainer's hearsay statements. In relation to the charge of rape, the accused was subject to bail conditions not to approach the complainer, the complainer had made an emergency telephone call to the police at the time the rape was said to have occurred, the complainer appeared distressed when the police attended, the accused was arrested near the locus shortly after, and there was deoxyribonucleic acid (‘DNA’) evidence suggestive of sexual contact between the appellant and the complainer. A special defence of consent was lodged but the appellant did not give evidence. A compatibility minute was lodged by the appellant which submitted that the hearsay evidence in respect of the relevant charges was decisive, and that there were insufficient counterbalancing factors to enable a proper assessment of that hearsay evidence to take place, as required by Art 6 of the Convention. The trial judge held that the hearsay evidence was decisive but that there existed sufficient counterbalancing factors and repelled the compatibility minute. The appellant was convicted of the relevant charges, among others, and sentenced to a total period of imprisonment of ten years. The appellant appealed.
The appellant argued that the evidence of the complainer could not be directly tested with the result that there had been an unfair trial and miscarriage of justice. In respect of the relevant charges, the hearsay evidence of the complainer had been decisive. Without the hearsay evidence, there was not a sufficiency of evidence upon which a jury could convict. There were inadequate procedural safeguards to allow the complainer's evidence to be tested by the jury. Much of the supporting evidence was, at best, neutral. The appellant also appealed against sentence.
The Crown conceded that the hearsay evidence concerning the charge of sexual assault by penetration was decisive. In relation to the charge of rape, the Crown submitted that there was adequate corroborative evidence such that the hearsay evidence could not be considered decisive. The Crown submitted that there existed sufficient safeguards for the jury to conduct a fair and proper assessment of the complainer's evidence.
Held that: (1) to determine whether hearsay evidence was decisive, the issue was not one of sufficiency but of whether there was supporting evidence which added adequately to the weight of the hearsay account, hearsay evidence was not decisive solely because it was the only direct evidence against the accused or was otherwise necessary to establish the essential elements of the crime charged (paras 45–49); (2) in this case, the hearsay evidence was not decisive for conviction of rape given the existence of supporting evidence of real significance (particularly the DNA evidence, the complainer's distress, the appellant being subject to bail conditions not to approach the complainer, and his arrest shortly after the telephone call to the police near the locus) (paras 50, 51); (3) on the assumption that the hearsay evidence was decisive in relation to the charge of sexual assault by penetration, there existed sufficient safeguards so as to permit reliance upon it, including the existence of corroborative evidence, the clear directions given by the trial judge as to treatment of the hearsay evidence, the appellant's opportunity to give evidence and the opportunity in the defence speech to highlight discrepancies in the hearsay evidence (para 53); (4) the sentence imposed was not excessive (para 57); and appeal refused.
Observed that had the issue of sufficiency of procedural safeguards arisen in respect of the charge of rape, the same conclusion as for the charge of sexual assault by penetration would have been reached and for the same reasons save that the corroboration was stronger (para 54).
McGlynn v UK [2012] ECHR 879 considered and Al-Khawaja v UK(2012) 54 EHRR 23followed.
The cause called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Dorrian), Lady Paton and Lord Turnbull, for a hearing, on 1 November 2018.
At advising, on 15 November 2018, the opinion of the Court was delivered by the Lord Justice-Clerk (Dorrian)—
Opinion of the Court—
[1] On 10 October 2017 after trial the appellant was unanimously convicted of the following charges:
‘(01) On 8 March 2017 at … you RYAN WILLIAM GRAHAM did assault (the complainer), then your partner and now deceased … threaten her with violence, struggle with her, displace her clothing, restrict her free movement, seize hold of her neck and penetrate sexually her vagina with your fingers, and an aerosel [sic] can to her injury: CONTRARY to Section 2 of the Sexual Offences (Scotland) Act 2009;
(02) On 8 March 2017 at … you RYAN WILLIAM GRAHAM did abduct and assault (the complainer), then your partner and now deceased, … and did lock her within said [address], refuse to allow her to leave and did seize hold of her body, repeatedly kick her on the body, punch her on the head, strike her on the head with a torch, propel an item of furniture towards her and cause it to break against her body, repeatedly seize hold of her neck, all to her injury;
(05) on 10 March 2017 at …, you RYAN WILLIAM GRAHAM did assault (the complainer) then your former partner and now deceased, … and did attempt to kiss her, utter sexual remarks and threats to her, repeatedly push her on the body, pull down her lower clothing, penetrate sexually her vagina with your fingers, attempt to rape her by attempting to penetrate her mouth with your penis, and rape her by penetrating her vagina with your penis and pull her hair, all to her injury: CONTRARY to Section 1 of the Sexual Offences (Scotland) Act 2009; you RYAN WILLIAM GRAHAM did commit this offence while on bail’.
He was sentenced to a total of ten years' imprisonment (three years for charge 1, 18 months for charge 2 and seven years for the final charge, to be served consecutively) backdated to 13 March 2017.
[2] The issues which arise in the appeal are (a) whether statements made by the complainer, who had taken her own life for unconnected reasons prior to the trial, admitted in terms of sec 259 of the Criminal Procedure (Scotland) Act 1995 (cap 46) (‘the 1995 Act’), ought to be viewed as decisive evidence against the appellant in terms of Al-Khawaja v UK, in relation to charge 1 and 5; and (b) in the event that the statements were decisive, whether there were sufficient procedural safeguards to ensure that there had nevertheless been a fair trial. In a compatibility minute, it was accepted that there was a good reason for the use of the hearsay evidence but it was maintained that in respect of each of charges 1 and 5 that the hearsay evidence was decisive, and that there were insufficient counterbalancing factors to enable a proper assessment of that hearsay evidence to take place. The trial judge repelled the compatibility minute.
[3] The statements of the complainer which were admitted under sec 295 included:
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• a recording...
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