HM Advocate v Nulty
| Jurisdiction | Scotland |
| Judgment Date | 09 May 2003 |
| Neutral Citation | 2003 SCCR 378,2000 SCCR 431 |
| Date | 09 May 2003 |
| Docket Number | No 15 |
| Court | High Court of Justiciary |
JC
L J-C (Gill), Lord MacLean and Lord Hamilton
Justiciary - Evidence - Admissibility - Hearsay - Complainer's taped evidence at first trial being played to jury at second trial - Whether discretion to admit evidence - Whether trial fair - Criminal Procedure (Scotland) Act 1995 (cap 46), sec 259
Section 259 of the Criminal Procedure (Scotland) Act 1995 provides that evidence of a statement made by a person otherwise than while giving oral evidence in court in criminal proceedings shall be admissible in those proceedings as evidence of any matter contained in the statement where various conditions are met.
The appellant was convicted of three charges of shameless indecency towards EN, VN and AN, and of unlawful sexual intercourse contrary to the Incest Act 1567 (cap 14) with EN. The evidence of each of the complainers was critical on the charge, or charges, that related to her, and the Crown relied primarily on the evidence of one or more of the three complainers as corroboration on theMoorov principle. At the appellant's first trial VN gave evidence and then EN gave evidence. Unexpectedly EN stated that both she and VN had also had sexual intercourse with their brother E. VN had not referred in her evidence to this point, and she was not recalled because the diet required to be desertedpro loco et tempore for another reason. At the second trial VN was unfit to give evidence and the Crown served notice under sec 259 of the 1995 Act of its intention to rely upon the transcript of VN's evidence at the previous trial. Before the jury was empanelled the solicitor-advocate for the appellant objected to the admission of that evidence, arguing that the court had a discretion under sec 259 to exclude the evidence. After the trial began the solicitor-advocate lodged a minute raising a devolution issue on the grounds that the admission of the hearsay would infringe the appellant's right to a fair trial under art 6 of the European Convention on Human Rights. At the close of the Crown case the solicitor-advocate again raised the devolution issue by way of a motion to the trial judge that he should rule that the hearsay evidence should be disregarded. During the second trial DV gave evidence that she was standing outside a car in which, according to EN, EN and the appellant were having sexual intercourse. The trial judge allowed the hearsay evidence to go to the jury, and directed the jury that DV's evidence could corroborate EN's evidence. The appellant appealed against conviction.
Held: (1) that the hearsay evidence was admissible, there being no obvious purpose in the exclusion from the ambit of sec 259 of all oral evidence given in court in criminal proceedings (p 146F-G); (2) that sec 259 gave the court no discretion to exclude hearsay evidence which qualified for admissibility (pp 147E-148C); (3) that the admission of the hearsay evidence deprived the appellant of a fair trial, the Crown having had the benefit of that evidence so far as it supported the libel, while the appellant was deprived of the opportunity to examine VN on the questions about her credibility and reliability that EN's evidence had raised, and the unfairness to the appellant must have been obvious by the conclusion of the Crown case at the latest, at which point the trial judge should have made the ruling requested, or directed the jury to acquit, rather than effectively directing the jury to take VN's evidence at its highest from the Crown's standpoint (pp 149G-150G, 152B-D); and (4) that DV's evidence could merely confirm EN's credibility and could not corroborate EN's evidence as to the commission in the car of an offence (p 151F); and appealallowed and convictions quashed.
McKenna v HM AdvocateSC 2000 JC 291 considered.
GDN was charged on indictment at the instance of the Right Honourable The Lord Hardie, Her Majesty's Advocate, with,inter alia, shameless indecency towards EN, VN and AN, and unlawful sexual intercourse contrary to the Incest Act 1567 with EN. He pled not guilty and the cause came to trial in July 1999. After some evidence had been led the diet required to be desertedpro loco et tempore. The cause came to trial again. Before the jury was empanelled the appellant objected to the admission of hearsay evidence which the Crown sought to lead under sec 259 of the Criminal Procedure (Scotland) Act 1995, but the trial judge granted the Crown's motion. After the trial began the appellant lodged a minute raising a devolution issue 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. The trial judge rejected that plea. At the close of the Crown case the appellant again raised the devolution issue by way of a motion to the trial judge that he should rule that the hearsay evidence should be disregarded. The trial judge refused that motion. The appellant was convicted in February 2000. He appealed against conviction to the High Court of Justiciary.
Cases referred to:
Advocate (HM) v Monson (1893) 21R (J) 5
Advocate (HM) v NUNK 2000 SCCR 431
Hughes v CroweUNK 1993 SCCR 320
Lauderdale Peerage CaseELR (1885) 10 App Cas 692
McKenna v HM AdvocateSCUNK 2000 JC 291, 2000 SCCR 159
Mackenzie v JinksSC 1934 JC 48
Moorov v HM AdvocateSC 1930 JC 68
Patterson v HowdleUNK 1998 SCCR 41
R v A (No 2)WLR [2001] 2 WLR 1546
R v Abas Kassimali Gokal [1997] 2 Cr App Rep 266
Walker's Trs v McKinlay (1880) 7R (HL) 85
Textbooks etc referred to:
Renton and Brown, Criminal Procedure (6th Looseleaf ed, W Green, 1996), para 24-130
Scottish Law Commission, Evidence: Report on Hearsay Evidence in Criminal Proceedings (Scot Law Com No 149, 1995) paras 4.36 et seq, rec 20
The appeal was heard before the High Court of Justiciary comprising the Lord Justice-Clerk (Gill), Lord MacLean and Lord Hamilton, on 12 December 2002.
At advising, on 9 May 2003 -
LORD JUSTICE-CLERK (GILL) -
[1] On 28 February 2000 at the High Court at Paisley the appellant was convicted of the following charges:
'(1) on various occasions between 1 January 1977 and 9 December 1987, both dates inclusive, at … you did conduct yourself in a shamelessly indecent manner towardsEN… and did handle her private parts, expose your private member to her, masturbate in her presence, ejaculate over her, induce her to handle your private member and to masturbate you, rub your private member against her private parts and simulate sexual intercourse with her, exhibit video tapes containing material of an indecent nature to her … ejaculate upon her, induce her to procureDV… andAS… for you for the purpose of having sexual intercourse with them …
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(3) on various occasions between 10 December 1979 and 30 October 1986, both dates inclusive, at … you did have unlawful sexual intercourse withEN… : CONTRARY to the Incest Act 1567; …
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(6) on various occasions between 23 April 1978 and 22 April 1983, both dates inclusive at … you did conduct yourself in a shamelessly indecent manner towardsVN… and did handle her private parts, insert your fingers into her private parts, attempt to induce her to masturbate you, attempt to induce her to insert your private member into her mouth, lie on top of her, ejaculate over her and have sexual intercourse with her; …
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(8) on various occasions between 26 June 1982 and 25 June 1987, both dates inclusive, at … you did conduct yourself in a shamelessly indecent manner towardsAN… and … exhibit a video containing material of an indecent nature to her and on one occasion did induce her to remove her clothing, make indecent suggestions to her, induce her to lie on a bed, lie on top of her and did rub your private member against her private parts and simulate sexual intercourse with her …'
Charge (6) was framed in the alternative as a charge of rape or shameless indecency. The appellant was convicted on the second alternative, the trial judge having directed the jury that there was insufficient evidence to entitle them to convict on the first.
[2] VN, EN, and AN, the complainers on these charges, are sisters born in 1965, 1967 and 1970 respectively. They have two brothers, one of whom, E, was born in 1966. The evidence of each of the complainers was critical on the charge or charges that related to her. Although the Crown relied on certain eye-witness evidence as corroboration on charges (1), (3) and (8), it relied primarily, on all four charges, on the evidence of one or more of the three complainers as corroboration on theMoorov principle. It was obvious from the outset, to the parties at least, that if any one of the complainers was not believed, that would not only be fatal to the charge or charges on which she was the complainer but would also be damaging to the Crown case on the other charge or charges on which the Crown relied on her evidence for corroboration.
[3] This was the second occasion on which the appellant stood trial on this indictment. The first trial took place in July 1999. When speaking to charge (6), VN referred to an occasion on which she had had intercourse with the appellant for the first time. It appears that both the Crown and the defence had gone to trial in the belief that before that occasion VN had been a virgin. In cross-examination, quite unexpectedly, VN said that she had had previous sexual experience. She then became distraught. When she was able to resume her evidence, she confirmed that she had not been a virgin when she first had intercourse with the appellant. This matter was not pursued further with her.
[4] EN then gave evidence. She said that E had had intercourse with her and with VN when they were younger. This evidence came as a surprise to both the Crown and the defence. The point had not been put to VN and she herself had not alluded to it. It would have been open to the Crown or the defence to have VN recalled so that she could be...
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