Morrison v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 21 February 1990 |
| Docket Number | No. 47. |
| Date | 21 February 1990 |
| Court | High Court of Justiciary |
FULL BENCH
L.J.-C. Ross, Lords Allanbridge, Cowie, Morison, Prosser, McDonald and Brand.
Evidence—Admissibility—Taped statement of pannel capable of being both incriminatory and exculpatory—Evidential value of mixed statement—Whether exculpatory portion evidence of truth of its contents.
A pannel was convicted on a charge of rape in the High Court of Justiciary at Edinburgh. He had made a taped interview to police officers investigating certain allegations by a complainer of rape which both implicated him in the commission of the crimes and exculpated him in that, although he admitted having had sexual intercourse with the complainer, it was a consensual act. The pannel gave no evidence but sought to rely upon the taped interview as evidence in his favour that the complainer had consented to intercourse with him. The trial judge (Lord Wylie) directed the jury that they were, in effect, to disregard the self-exonerating part of the pannel's statement as it was no substitute for evidence in the trial. There was, however, evidence led by the Crown that intercourse had been preceded by consensual kissing and that the complainer's daughter had slept through the incident. The pannel appealed by way of note of appeal against conviction.
Held (by a court of seven judges) (1) that, the general rule was that hearsay (i.e. evidence of what another person had said) was inadmissible as evidence of the facts contained in the statement so that an accused person was not entitled to lead in evidence a prior exculpatory statement as evidence of the truth of its contents; (2) that, an exception to this rule existed where the statement was truly part of the res gestae; (3) that, where the Crown led in evidence, or where evidence was led by the defence without objection from the Crown of a statement made by an accused person prior to the trial which was capable of being both incriminatory and exculpatory, the whole statement was admissible as evidence of the facts contained in the statement for it would be unfair to admit the admission without also admitting the explanation, the jury being directed that they must consider the whole statement, both the incriminatory and exculpatory parts, and determine whether the whole or any part of the statement was accepted by them as the truth; (4) that, a prior statement of an accused which was not to any extent incriminatory was admissible for the limited purpose of proving that the statement was made, and of the attitude or reaction of the accused at the time it was made which was part of the general picture which the jury had to consider, but it was not evidence of the facts contained in the statement; thus, a statement might be admitted for the limited purpose of shewing that the accused's story has been consistent; and there had been a miscarrige of justice; and appealallowed and conviction quashed.
Hendry v. H.M. AdvocateSC 1985 J.C. 105 overruled.
Dicta of Lord Justice-Clerk Grant and Lord Strachan inBrown v. H.M. AdvocateSC1964 J.C. 10 at pp. 13 and 18disapproved.
Passages in Alison, Criminal Law, at p. 555 and Macdonald,Criminal Law (5th edn.) at p. 316, disapproved.
Passages in Dickson, Evidence (3rd edn.), vol. i, at paras. 311 and 312 and Cross, Evidence (6th edn.), p. 38approved.1
Opinion, that, in any event, there was evidence capable of confirming the appellant's statement so that, even if Hendry v. H.M. AdvocateSC1985 J.C. 105 had been properly decided, the statement ought to have been left to the jury as relevant to their consideration of whether or not it confirmed the other evidence.
Observed, that, the trial judge should exercise restraint in commenting, in relation to the exculpatory remarks in an accused's statement, upon the election of the accused not to give evidence and he should comment only where there were special circumstances which required it.
Observed further, that, it will normally be appropriate for the trial judge to remind the jury that an exculpatory statement was not made on oath or subject to cross-examination, leaving it to them to determine what weight to attach to the statement.
Ian Morrison was charged on an indictment at the instance of the Rt. Hon. The Lord Fraser of Carmylllie, Q.C., Her Majesty's Advocate, on two charges of rape of a Mrs K.R.M.F. in her house, the first one being, in the course of his trial, reduced to attempted rape. The cause came to trial in the High Court of Justiciary at Edinburgh before Lord Wylie and a jury on 20th and 21st July 1989. On 21st July 1989 the jury returned a verdict of not proven on the attempted rape charge but found the pannel guilty of the rape charge. The appellant thereafter appealed by way of note of appeal against conviction to the High Court of Justiciary.
In his charge to the jury, Lord Wylie stated, inter alia:—"Something was said about statements, the statement attributed to the accused which was the subject matter of that lengthy tape-recorded interview. If a person makes a statement and it is proved to have been accurately recorded and fairly obtained, then that statement, of course, does form part of the evidence in the case and you take it into consideration. Insofar as it is self-incriminating, it is, of course, admissible evidence, because it would be against the interests of the person making it to say anything of an incriminatory nature and in this instance the accused freely conceded, and counsel for the accused took this as a point in his favour, that from the very outset he never denied knowing the girl, he never denied being with the girl and he never denied having sexual intercourse with the girl twice, in fact, and that is relevant evidence that you can take into account. On the other hand, anything made, said in a statement which is self-exonerating, is not a substitute for evidence in the witness-box. There is no obligation on an accused to give evidence in the witness-box and he did not give evidence in this case, I have no doubt on counsel's experienced and wise advice, that is usually the responsibility of counsel and you may recall there was a short adjournment when certain matters
were considered and no doubt as a result of what transpired then the decision was taken not to lead evidence. Well now, you do not draw any adverse inference … against the accused, by the fact that he did not give evidence, because he is not obliged to give evidence. Theonus of proof, as I have already said, remains on the Crown, but insofar as he has, he is alleged to have said things which were self-exonerating, then you will bear in mind that these statements are not a substitute for the evidence which he might have given, if he had chosen to do so or been advised to do so in the witness-box. Now, there are two charges before you and you have to consider each charge separately and return a verdict on each charge separately. The first … has been amended to a charge of attempted rape and the second remains the charge of rape. The issue in this case, which not infrequently arises in these cases, is whether the intercourse which has admittedly taken place so far as charge (2) is concerned, the charge of rape, was with the consent of this woman or forcibly and against her will. Now, ladies and gentlemen, as I say I don't think it is necessary for me, or perhaps not even desirable for me, to go into the evidence in this case in any detail at all. Counsel for the accused in particular very fairly canvassed both the evidence of the complainer herself … in some detail, and the position of the accused, particularly as set out in the transcript and the tape recording to which I have already referred. There seems to be no doubt about it that on the whole this was an agreeable relationship between the accused and [the complainer] for most of the time. They met at Pickwick's. He had smiled over to her. He had reverted to a … rather different kind of person when he told her at one stage suddenly and for no apparent reason to fuck off and she complained that she had never been spoken to like that before, but then he apologised, and we know how the question of possibly going to the Abercorn or some public house arose and, for various reasons, either—I think maybe because it was probably too late in the night to go there, they decided [the complainer] and her friend [A] decided to go back to [A]'s house where the youngest child had been left and where the two other children were, and to which the other two children had returned shortly before they went out, and for one reason or another Mr Morrison was invited to go along with them and he did go along with them at some later stage, I think it was about a quarter to two in the morning, or twenty to two in the morning, they all decided to go [the complainer] decided that—it was her birthday by that time—to take the children back to their own home which wasn't far away, only a few minutes' walk. Mr Morrison offered to chum them, I think was the expression [the complainer's child N] used, chum them down the road. According to [A], as I noted her, and, indeed, according to [N] as well, [the complainer] said, “There's no need for that, I have got the children here, we are perfectly capable of going on our own”, but, according to [A], as I noted her, he insisted in accompanying her down the road and they left between 1.30 and 1.40 a.m. on that Sunday morning and that, of course, is the last [A] knows about the situation until she sees her friend [the complainer] the next morning. And then you have got the evidence of what transpired in the house. They all went in. Counsel makes the point that, well, she could have refused to let him in at that point, but she didn't. The advocate-depute says maybe she was being a bit naive by this time, but, of course, that's not a justification for the kind of assault which the Crown allege in this instance, but for one reason or another and in these circumstances they seemed to...To continue reading
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