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Scottish High Court of Justiciary Decisons


You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Humphrey v. Her Majesty's Advocate [2008] ScotHC HCJAC_30 (28 May 2008)
URL: http://www.bailii.org/scot/cases/ScotHC/2008/HCJAC_30.html
Cite as: 2008 GWD 18-317, [2008] ScotHC HCJAC_30, 2008 SCL 835, [2008] HCJAC 30, 2008 JC 362

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APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Osborne

Lord Johnston

Lord Reed

 

 

 

 

 

 

 

[2008] HCJAC30

Appeal No: XC924/05

 

OPINION OF THE COURT

 

delivered by LORD JOHNSTON

 

in

 

NOTE OF APPEAL AGAINST CONVICTION

 

under section 110 of the Criminal Procedure (Scotland) Act 1995

 

by

 

MARK ANDREW STEPHEN HUMPHREY

 

Appellant;

against

 

HER MAJESTY'S ADVOCATE

 

Respondent:

 

_______

 

 

Act: Forbes, Balfour + Manson, LLP

Alt: Ogg, QC, AD; Crown Agent

 

28 May 2008

 

[1] On 14 October 2005 the appellant was convicted after trial at Glasgow High Court of the following charge:

"on 22 April 2004 at Lamlash Crescent, Glasgow, you did assault Alison McIntyre, c/o Strathclyde Police, Easterhouse, Glasgow and while she was under the influence of alcohol and drugs and bereft of the power of resistance, drag her into a car park there, push her to the ground, pull down her clothing, struggle with her, repeatedly punch and kick her on the head, lie on top of her and rape her, all to her severe injury."

[2] Before this court the appellant lodged a number of grounds of appeal but the only one that was insisted in before us after being amended was in the following terms.

"That the learned judge erred in repelling the submission by the defence at the close of the evidence that the leading by the Crown of hearsay evidence in terms of section 259 of the Criminal Procedure (Scotland) Act 1995 relating to a deceased witness Joseph Robertson was unfair and in breach of the appellant's right to a fair trial in terms of Article 6 of the European Convention on Human Rights and that as a consequence the judge erred in refusing to withdraw said evidence from the jury's consideration. It is submitted that the hearsay evidence led which was contained in Crown Production 13 was decisive in the case in that the Crown had to rely on what the deceased Robertson saw to corroborate that the appellant knew the complainer was not consenting to intercourse. Having lodged a devolution issue notice in advance of the trial objection was taken timeously during the trial to the leading of the said hearsay evidence. It is respectfully submitted that standing the fact the Crown required to rely on the evidence of what the witness saw to a decisive extent the learned judge erred in repelling the defence submission."

[3] Section 259 therein referred to is as follows.

"Subject to the following provisions of this section evidence of a statement made by a person otherwise and while giving oral evidence in a court in criminal proceedings shall be admissible in those proceedings as evidence of any matter contained in the statement...."

[4] The various provisos attached to that section are not relevant to the present appeal in as much that no point was taken in respect of any of them.

[5] On the face of it the ground of appeal finally focussed before us after adjustment would appear to raise what is generally regarded as a devolution issue but after some discussion counsel for the appellant accepted that there was no such issue in this case as now focussed. The proper issue being in relation to the conduct of the court as regards the use to be made of the hearsay evidence once it was admitted not least in the context of the human rights legislation.

[6] Counsel focussed on two cases in relation to the inter-reaction of section 259 above referred to and the European Convention on Human Rights, in particular Article 6(1) and (3)(d). The principal case was Nulty v HM Advocate 2003 SCCR 378 and a subsequent case in the same year of Campbell v HM Advocate 2003 SCCR 779. It has to be stated at once that both these cases concerned trials which took place before the Human Rights Act came into force and accordingly any question of fairness of trial under Article 6 of the Convention was being focussed on a devolution issue. A minute to that effect was lodged before the start of the trial. The Advocate General did not intervene but as we already stated the whole question of the devolution issue has disappeared in the context of this appeal. To some extent however, the human rights issue under the latter legislation has not.

[7] The substance of the decision in Nulty was that the admissibility of hearsay evidence which could not be cross-examined amounted to a lack of fairness in the trial although it has to be again stated at once that that matter was conceded by the Crown in the case which leaves it to our mind of very little significance. In the latter case of Campbell some qualification was admitted by the Court to the extent that if the evidence was decisive in the context of hearsay it might remain unfair for it to be used and the question thus became one of degree.

[8] The facts and circumstances of the case which are not in dispute to this extent are that the complainer left a taxi in the company of the appellant on the taxi driver's evidence completely unharmed, albeit drunk, while the appellant was in an aggressive and argumentative mood. When next seen by independent evidence the complainer was very seriously injured and while she could not apparently remember what had precisely happened to her, the appellant admitted sexual intercourse had taken place and at the end of the day the issue on the facts of the case was whether the evidence supported a lack of consent on her part. We were shown photographs that were before the jury which indicated widespread and awful injuries to the complainer from her head to her feet. The witness Robertson, the source of the hearsay evidence since he is now deceased, said in a statement to the police which was relied upon by the Crown that he had seen various aspects of the matter taking place in the street not least that the complainer was dragged across the street by the appellant, that he was seen lying on top of her, that she was apparently moaning, her legs were bare although she had apparently worn trousers before and she was left in a very distressed state.

[9] At the trial the principal attack upon the credibility and reliability of Robertson was that he was admittedly of very limited sight and accordingly an ophthalmologist doctor was led in this respect. His evidence was at the very least prima facie unreliable which increased, as counsel developed in his argument, the need for him to be cross-examined properly or indeed at all if the appellant was to have a fair trial.

[10] Mr Forbes developed his argument by focussing upon the importance of the evidence of Robertson which he maintained, contrary to the way the ground of appeal was apparently focussed, essentially was the substance of the Crown case and not merely providing corroboration. This he based upon the fact that the complainer could not remember what had actually happened to her in terms of any sexual contact. He maintained that in terms of paragraph 36 of Nulty the trial judge having admitted the evidence under section 259 should have either supported the submission of no case to answer in which case he submitted there would not be sufficient evidence if Robertson's evidence was withdrawn or withdraw it from the jury or direct them that they should ignore it or even in the extreme desert the trial pro loco et tempore, all because of the potential unfairness if not actual unfairness to the appellant of the evidence being before the jury, not having been adequately cross-examined or investigated.

[11] The response by the Advocate Depute was of a radical and totally different nature. He maintained that the case was one of circumstantial evidence of a very strong nature in which the evidence of Robertson on the hearsay basis provided only a part and not even an essential part of the whole Crown case. He drew our attention to the evidence of the taxi driver to which reference has already been made, the extent of the complainer's injuries, the very important fact that they were always together during the relevant period; she had made it clear in evidence that she would not have voluntarily submitted to sexual intercourse in the street or indeed in any street, the evidence from Robertson which was not referable to his sight, namely moaning, both during and after the alleged sexual event was of high significance; the evidence of a porter at a nearby set of flats who deponed to the general state both physically and mentally of the complainer after the event and all this in the context of an admission by the appellant that sexual intercourse had taken place, his position being obviously with her consent.

[12] The Advocate Depute submitted that the evidence of Robertson therefore while material, was not remotely to be categorised as decisive and he went so far, which the trial judge seemed to have accepted in her own assessment of the position at the time of the argument with regard to no case to answer, was not even essential to the conviction, there being sufficient evidence without it.

[13] Any question of devolution issues in this case having been admittedly abandoned, the only European dimension in this case which remains, but nevertheless with some importance, is that of the human rights legislation. We recognise that there is a real question as to how section 259 (supra) should be interpreted in the context of that legislation and we reserve that issue for another day, the matter not having been properly explored in this case. Suffice it to say for the purpose of this case that we are satisfied that the admission of the evidence in question, in the context of the evidence as a whole and the directions given by the trial judge to the jury, did not compromise the fairness of the trial

[14] Having said that, in this context we do not consider that the human rights legislation adds anything to the overall responsibility which has always been incumbent on the court to ensure that a fair trial takes place. The question there to be determined by this court in this case is whether having correctly admitted hearsay evidence thereafter whether the trial judge properly monitored its effect, use and ultimate relevance as a matter of fairness in the context of a fair trial.

[15] In this respect we are entirely satisfied the trial judge followed an appropriate course both in her managing of the trial and in her directions to the jury which were not in any way challenged in this context. As she says in her report she was satisfied that it was not unfair for the jury to continue to consider the hearsay evidence of Robertson in its overall context. We do not accept that it was remotely decisive whatever that word may mean in the present case given that we are satisfied that there was sufficient evidence to support the conviction even if his evidence had either never been proffered as hearsay or been removed from the purview of the jury. We consider the Advocate Depute's adminicles pointing to the circumstantial case are overwhelming.

[16] While upon the evidence the complainer might have considered sexual intercourse at some stage of the evening, there is little doubt by the time she left the taxi, on the taxi driver's evidence, she was neither contemplating it nor in any event willing to submit to it in the street. The injuries with which she was found to have suffered comparatively shortly afterwards upon the evidence are appalling. While the appellant admitted to some aspects of assault there is no way that those admissions could account for the extent of the injuries overall, which could be accounted for by forcible intercourse on a hard surface namely a pavement, of a violent nature. It is highly significant that the complainer maintained that she would not have been willing to have sex under any circumstances voluntarily in the street. The evidence from Robertson of moaning which is nothing to do with his eyesight, both at the time and thereafter is at the least consistent not with any form of sexual voluntary conduct but rather with an aggravated assault having taken place and the fact that the porter in question heard her moaning thereafter supports that view.

[17] It is therefore our view that the evidence disclosed in this case supports overwhelmingly the conclusion that the appellant forcibly raped the complainer without any reference, possibly with the exception of moaning, to the evidence of Robertson at all. We further consider that in this context it was entirely appropriate and certainly within a legitimate exercise of her discretion as trial judge in the context of the fairness of trial for her to have left the matter to the jury for their consideration in the overall context and by the matter we mean the content of Robertson's hearsay statement. We do not consider that it falls in the category of decisiveness as focussed by the case of Campbell although we repeat we have great difficulty in understanding the meaning of such a word in the context of a circumstantial case.

[18] In these circumstances putting aside any questions of European jurisprudence on the general issue of hearsay evidence and its impact on a trial in the context of the Convention we are satisfied on a simple common law approach that there was sufficient evidence before the jury, even without the evidence of Robertson and certainly with it, to entitle them to convict of rape. All the relevant evidence was appropriately before them, and we will not interfere in that respect.

[19] In these circumstances this appeal must fail and will be refused.

 

 


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