Shaban Ahmed V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lady Paton,Lord Mackay of Drumadoon |
| Neutral Citation | [2008] HCJAC 64 |
| Published date | 12 November 2008 |
| Date | 12 November 2008 |
| Year | 2008 |
| Docket Number | XC737/07 |
| Court | High Court of Justiciary |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Osborne Lady Paton Lord Mackay of Drumadoon | [2008] HCJAC 64 Appeal No: XC737/07 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST CONVICTION by SHABAN AHMED Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: G. McClure, Solicitor Advocate; McClure Collins
Respondent: Prentice, Q.C., Advocate Depute; Crown Agent
12 November 2008
Introduction[1] The issue in the present appeal is whether evidence of a de recenti statement, said to have been made by a complainer alleging rape, may be relied upon by the jury although the complainer, when giving evidence, denied making such a statement.
[2] The nature and purpose of a de recenti statement was explained by Lord Justice Clerk Aitchison in Morton v HM Advocate 1938 J.C. 50 at page 53 as follows:
" ... A statement made by an injured party de recenti, unless it can be brought within the rule of res gestae, is ordinarily inadmissible as being hearsay only, but an exception is allowed in the case of sexual assaults upon women and children, including sexual offences against young boys. In cases of that kind the court will allow the evidence of complaints or statements de recenti made by the injured party, for the limited purpose of showing that the conduct of the injured party has been consistent and that the story is not an afterthought, and, in the case of assaults upon women, to negative consent. A complaint de recenti increases the probability that the complaint is true and not concocted, and the absence of complaint where sexual offences are alleged is always a material point for the defence. But it must be clearly affirmed that the evidence is admissible as bearing upon credibility only, and the statements of an injured party, although made de recenti of the commission of a crime, do not in law amount to corroboration ..."
[3] On 16 August 2007, the appellant was convicted by majority verdict at Glasgow High Court of the following offence:
"On 18 June 2006 at Knightswood Park, Glasgow, you did assault AB, born 12 August 1990, c/o Strathclyde Police, City Centre Police Office, Glasgow, seize hold of her, push her to the ground, forcibly remove her trousers, lie on top of her, place your hand over her mouth and did rape her."
[4] On 19 September 2007, the appellant was sentenced to five years imprisonment. On 10 December 2007, he lodged a Note of Appeal against conviction. The relevant grounds of appeal are:
"(1) The trial judge misdirected [the] jury on a material issue in regard to the use to which it could put the statement by the complainer, AB. At pages 22-24 of the charge to the jury the learned trial judge directed the jury that it could take account of evidence of a de recenti claim of rape by the complainer, AB, although the complainer in her evidence denied making the statement. Reference is made to MacDonald against Her Majesty's Advocate 2004 S C C R page 100 ...
(3) [That misdirection amounts] to a miscarriage of justice ..."
Circumstances of the offence[5] The report of the trial judge narrates that on Saturday 17 June 2006 the complainer AB, then aged 15 years 10 months, and her friend CD, then aged 14 years, absconded from a residential school. They met the appellant and his companion Farhad Ahmed in Glasgow city centre. They agreed to join the men for a drink. The two girls and Mr Ahmed got into the appellant's car. The appellant drove, and ultimately, in the early hours of Sunday 18 June 2006, stopped outside Knightswood Park, Glasgow.
[6] There was a conflict in evidence as to whether there had been a discussion about sex and money. The appellant gave evidence that the complainer agreed to have sexual relations with him for £10. The complainer's friend CD also gave evidence that there had in essence been an agreement by the complainer to participate in sex in exchange for £10. By contrast, the complainer gave evidence that she had accepted £10, but that there had been no discussion about sex or money.
[7] The group got out of the car and went into Knightswood Park. The trial judge's report summarises the evidence relating to subsequent events as follows:
"... The complainer, according to her evidence, separated from the others in order to relieve herself. She went down a hill and towards a stand of trees or bushes. It was when she had just finished relieving herself that, according to the complainer, the appellant came up behind her, grabbed her arm, pulled her down, got on top of her and raped her. Thereafter he said 'Let's go' and they then walked together up the hill, re-entered the car and the two girls were driven back to the centre of Glasgow, where they were dropped off. The complainer accepted that the appellant had given her £10 after having sexual intercourse with her, but she was adamant that there had been no previous discussion of sex or money ... "
[8] The two girls visited a hotel and used the facilities. They then went on a bus journey, after which they contacted the British Transport Police. They were taken back to the residential school. On their return, CD told a member of staff what had happened to AB, and investigations began.
Evidence relating to a de recenti statement[9] Transcripts of parts of the evidence were available at the appeal hearing.
[10] The complainer AB gave evidence from the witness box. On several occasions she denied having made a de recenti statement. In examination-in-chief, she described being raped, and then walking back up the hill to the appellant's car. Relevant parts of her evidence-in-chief were as follows:
Pages 44 to 45
Q When you get back up to the car, did you say anything to CD?
A No.
Q About what happened to you?
A No.
Pages 47 to 53
Q And did anything happen when you were in the toilet at the Holiday Inn or did you realise anything at that point?
A Naw, I went into the toilet to clean, to clean myself up.
Q You went in to clean yourself up. And was it at that point you could see something on your underwear?
A Yes.
Q What was it you could see?
A Semen.
Q Semen. And were you able to clean yourself up?
A (Inaudible).
Q And what did you do after you cleaned yourself up, did you stay at the Holiday Inn or did you leave it?
A Naw, we stayed in it for about half an hour.
Q You and CD?
A (Inaudible).
Q At that point did you tell CD what had happened?
A Naw.
Q Or did you discuss it?
A ... she asked me.
Q She asked you?
A Uh huh.
Q If I could cast your mind back, when you were walking out of the ... after this had happened, when did you become aware of CD?
A When I got to the top of the hill.
Q When you got to the top of the hill?
A Aye, CD and that other man was standing at the top of the hill.
Q So CD asked you about what had happened, did you tell CD what had happened?
A I never told her exactly what happened, I just ... she said, "Where were you?" and I says I ... I didnae say, ken, exactly.
Q Right. So she asked you what had happened, but you didn't say, or did she ask where you were, which was it? Did she say what happened or did she say where were you?
A Aye, she was asking me where I was because she was shouting me.
Q She was asking you where you were, but you didn't tell her what had happened to you?
A (Inaudible).
Q Was there a reason why you didn't tell her what had happened to you?
A Because I was embarrassed.
...
Q Did you say anything to the police about what had happened, what Shaban had done to you?
A No.
Q And, again, was there any reason why you wouldn't tell the police?
A Because I just ... I don't know, I was too embarrassed.
Q Again you were too embarrassed.
A And they'd think it was my own fault for running away, ken what I mean.
Q Sorry, did you say you thought the police would think it was your fault as well, because you'd run away?
A Mm hmm.
...
Q When you initially went back to the school did you tell the people in the school what Shaban had done to you?
A No.
Q And I'm afraid I'm going to ask you the same question, was there a reason why you didn't tell the school at that point?
A I was too embarrassed.
Q Just the same reason?
A (Inaudible).
Q And once you'd had your shower, did anything happen, did you go to bed or what happened then?
A Naw, I came out the shower and the staff says, ehm, "CD's told us what happened".
Q Right. You were told that CD had told them what happened?
A (Inaudible).
Q But, forgive me, I thought you hadn't told CD what had happened?
A Naw, but she must have seen something, I don't know.
Q So the ladies and gentlemen understand it, you didn't tell CD what had happened, but you're then told that CD's given information about what had happened?
A Mm hmm.
[11] In cross-examination, the complainer confirmed her position:
Pages 129 to 130
Q Did you say anything to CD about what happened?
A Naw.
Q Did she say anything to you?
A Naw.
...
Q Now, you remember you were asked this morning if you told CD what happened and you said that you hadn't told her, and you went on to say she asked you where were you because she was shouting on you; is that right?
A Mm hmm.
Q And you didn't want to tell her what happened at that stage?
A No.
Q But you were with her in a safe place, alone, without these men being there, do you agree with that?
A Mm hmm.
Q If this had happened to you you would have been very distressed; is that right?
A Mm hmm.
Q Upset.
A Mm hmm.
Q This is a girl that you spent some time with at the school; is that right?
A Sometimes, I didnae spend a lot of time with her.
Q But in any event you didn't feel that you wanted to tell her how this terrible thing happened to you?
A No.
Q When she asked you where were you, what did you say to her?
A Nothing, I didn't answer her.
Q You didn't answer her?
A Naw.
[12] CD gave evidence from a witness room by means of CCTV. In evidence-in-chief, having described being separated from the complainer in Knightswood Park (page 21 et seq.) and then meeting up with her again, she gave the following evidence...
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Shaban Ahmed V. Her Majesty's Advocate
...from both parties, remitted the case to a bench of five judges given the general importance of the issue in dispute (Ahmed v HM Advocate [2008] HCJAC 64). Antecedents and background to the offence [3] At the time of the offence the complainer, who was aged 15 years and 10 months, and CC, wh......