Macdonald v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Turnbull,Lord Pentland |
| Judgment Date | 26 May 2020 |
| Neutral Citation | [2020] HCJAC 21 |
| Date | 26 May 2020 |
| Court | High Court of Justiciary |
| Docket Number | No 25 |
[2020] HCJAC 21
High Court of Justiciary
Lord Justice General (Carloway), Lord Turnbull and Lord Pentland
Advocate (HM) v CJW [2016] HCJAC 111; 2017 SCCR 84; 2017 SCL 145; 2016 GWD 38–670
Ahmed v HM Advocate [2009] HCJAC 73; 2010 JC 41; 2009 SLT 917; 2009 SCCR 861; 2009 SCL 1227
Bakhjam v HM Advocate [2018] HCJAC 11; 2018 JC 127; 2018 SLT 215; 2018 SCCR 77
Begg v HM Advocate sub nom Dreghorn v HM Advocate [2015] HCJAC 69; 2015 SLT 602; 2015 SCCR 349; 2015 SCL 802
Donegan v HM Advocate [2019] HCJAC 10; 2019 JC 81; 2019 SCCR 106; 2019 GWD 10–134
Graham v HM Advocate [2017] HCJAC 71; 2017 SCCR 497; 2017 SCL 963; 2017 GWD 30–479
Hogan v HM Advocate [2012] HCJAC 12; 2012 JC 307; 2012 SLT 1055; 2012 SCCR 404; 2012 SCL 755
Lucas v HM Advocate [2009] HCJAC 77; 2009 SCCR 892; 2010 SCL 153; 2009 GWD 33–559
M v HM Advocate (No 2) sub nom CJM v HM Advocate [2013] HCJAC 22; 2013 SLT 380; 2013 SCCR 215; 2013 SCL 361
Maqsood v HM Advocate [2018] HCJAC 74; 2019 JC 45; 2019 SCCR 59; 2018 GWD 40–490
Wishart v HM Advocate [2013] HCJAC 168; 2014 JC 190; 2014 SCCR 130; 2014 SCL 173; 2014 GWD 1–13
Lord Justice General (Sutherland), Practice Note (No 2 of 2017): Prior Statements (High Court of Justiciary, Edinburgh, 18 April 2017), para 4 (Online: www.scotcourts.gov.uk/docs/default-source/rules-and-practice/practice-notes/criminal-courts/criminal-courts---practice-note---number-2-of-2017.pdf?sfvrsn=10 (3 June 2020))
Scottish Executive, Redressing the Balance: Cross-examination in rape and sexual offence trials — A pre-legislative consultation document (Scottish Executive, Edinburgh, November 2000)
Justiciary — Procedure — Charge to jury — References to complainer as “victim” by sheriff — Whether such reference prejudicial — Whether miscarriage of justice
Gavin Watson Macdonald was charged at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, for trial at the sheriff court in Livingston on an indictment the libel of which set forth a charge of sexual assault with intent to rape, contrary to secs 2 and 3 of the Sexual Offences (Scotland) Act 2009 (asp 9). On 5 September 2019, he was convicted of sexual assault and subsequently sentenced to 27 months' imprisonment. He appealed against conviction to their Lordships in the High Court of Justiciary.
The appellant was indicted on a charge of sexual assault with intent to rape. He lodged a special defence of consent. An application under sec 275 of the Criminal Procedure (Scotland) Act 1995 (cap 46) (‘the 1995 Act’) was lodged which sought to lead evidence of, inter alia, prior events involving the complainer and that, at the time of the events alleged in the libel, the complainer had ingested cocaine with the appellant. There was no record of the application having been granted at any prior calling of the case but the trial proceeded on the basis that it had. At trial, it was agreed by joint minute that the appellant had digitally penetrated the complainer's vagina. In cross-examination, it was put to the complainer, inter alia, that she had consented to sexual activity, had used cocaine with the appellant, and that the appellant had said, “You better go before we do something we regret”. It was suggested to the complainer that, thereafter, she had told another witness that she had kissed someone and had had some “lines” with him. These matters were all denied by the complainer. The appellant did not give evidence. In the defence speech, it was suggested that the complainer had lied about the incident, that the sexual activity had been consensual, that the complainer had taken cocaine which had impaired her judgment, and that her conduct fitted more with the appellant having said, “You better go before we do something we regret”. It was also noted that the complainer had not fought off the appellant. The sheriff directed the jury on the special defence of consent and reasonable belief in consent and stated that it was the appellant's ‘position’ that the complainer was a willing participant to sexual activity. No direction under sec 288DB(2) of the 1995 Act was given. On several occasions in the course of his charge, the sheriff referred to the complainer as the “victim”. The appellant was convicted of sexual assault under deletion of intent to rape. He appealed.
The appellant argued that the sheriff's repeated references in his charge to the complainer as a “victim” had been prejudicial and had resulted in a miscarriage of justice.
Held that, while the sheriff ought not to have referred to the complainer as a victim, no miscarriage of justice had arisen as a result; the word had not been used in a manner which would have suggested that the crime libelled had been committed, or that the complainer was in fact a victim, and it would have been clear to the jury that the task which they had required to undertake was a determination of whether the events had occurred as described by the complainer (para 32); and appeal refused.
Observed that: (1) the sec 275 application, in so far as relating to events prior to the incident libelled in the charge, ought to have been refused. A court was obliged, if admitting any evidence under sec 275 of the 1995 Act, to state and record its reasons for doing so and the absence of any such record amounted to a serious deficiency (paras 36–39); (2) in the absence of any evidence in support of the special defence of consent, it ought to have been withdrawn and the suggestion in the defence speech that a positive case of consent had been made out had been improper (para 41); (3) the sheriff ought to have made it clear to the jury that the appellant had no ‘position’ beyond the terms of the joint minute and the not guilty plea and that there was no evidence of consent to any sexual activity by the complainer or any reasonable belief in consent and the sheriff's statement in relation to the appellant's ‘position’ had been a misdirection (paras 42, 43); (4) the evidence of what the complainer had said to another witness about cocaine use was hearsay and not evidence of fact and there was no proper basis for the defence suggestion that the complainer's judgement had been impaired by cocaine; such an assertion ought not to have been made, failing which the sheriff ought to have intervened or clarified matters in his charge (para 44); (5) the reference in the defence speech to the alleged remark, “You better go before we do something we regret”, was no more than something which was put to, and denied by, the complainer. It was not evidence, it was improper for reference to have been made to it in the speech, and the sheriff ought specifically to have directed the jury to ignore that part of the speech and to have explained that there was no evidence that such a remark had been made (para 45); and (6) in sexual offence trials, where evidence has been elicited that sexual activity took place without physical resistance, a direction under sec 288DB of the 1995 Act ought to be given (para 46).
The appeal called before the High Court of Justiciary, comprising the Lord Justice General (Carloway), Lord Turnbull and Lord Pentland, for a hearing, on 12 May 2020.
At advising, on 26 May 2020, the opinion of the Court was delivered by the Lord Justice General (Carloway)—
Opinion of the Court—
[1] On 5 September 2019, at the sheriff court in Livingston, the appellant, who was aged 52 at the material time, was convicted of a charge which, following the jury's verdict, was in the following terms:
‘[O]n 28 August 2017 at … Bathgate you did sexually assault [SD], … did lock a door to prevent her from leaving the room, place your hand under her clothing and touch her breasts, make comments of a sexual nature towards her, bite her on the body, seize her by the hair and pull her backwards onto a bed, lean on top of her, straddle her and pin her to the bed, put your fingers in her mouth and push her head to the side, attempt to kiss her on the mouth, pull her towards you, rub your body and penis against her body and sexually penetrate her vagina with your fingers to her injury; CONTRARY to sections 2 and 3 of the Sexual Offences (Scotland) Act 2009 [(asp 9)]’.
The jury deleted a part of the libel which alleged that the assault had been carried out with intent to rape. On 26 September 2019, the appellant was sentenced to 27 months' imprisonment.
[2] Leave to appeal was granted only in respect of one ground of appeal; whether the sheriff's references to the complainer as a ‘victim’ at certain parts of his charge were such as to constitute a miscarriage of justice. However, the case raises a number of issues in relation to the conduct of sexual offences trials in general. In particular, first, it highlights deficiencies in the procedure for the determination of applications under sec 275 of the Criminal Procedure (Scotland) Act 1995 (cap 46). Secondly, it focuses sharply questions of what may be put to a complainer in cross-examination. Thirdly, once again, it concerns what may be said in a defence jury speech in relation to an accused's ‘position’, when no evidence has been led to demonstrate what that position might be. Fourthly, the appeal concerns the duties of the presiding judge or sheriff in controlling the proceedings, especially in relation to unwarranted attacks upon the character of a complainer, and in formulating the charge to the jury relative to the live issues at trial. It must be said in limine that the manner in which this trial proceeded gives rise to real causes of concern.
[3] The case was a straightforward one involving a single accused and one charge of a single sexual assault with attempt to rape. There were 14 witnesses listed: three civilian, two forensic scientists, a forensic medical examiner and eight police officers. Notwithstanding the nature of the case, the first diet was ‘adjourned’ on...
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