Scottish High Court of Justiciary Decisons

HER MAJESTY'S ADVOCATE v. GILBERT DOUGLAS NULTY [2000] ScotHC 18 (17th February, 2000)

Charge 6 on the indictment which the accused faces is a charge of rape, or alternatively unlawful sexual intercourse with V. A trial on an indictment containing the same charge started in July 1999 and on 14 and 15 July V. gave evidence. Essentially her evidence was in support of the charge. In her examination-in-chief she described an incident, which involved full sexual intercourse, and said that that was the first sexual incident she had had with the accused. Both the Crown and the defence had assumed that that incident was the first such incident that she had ever had. I was informed that precognitions taken by both sides were to that effect and the defence had checked and confirmed their information with the Crown. It therefore came as a surprise when in cross-examination V. revealed that she had had an earlier sexual experience. She said this first in answer to a question in cross-examination, which, it seems, expected an answer to the opposite effect. The relevant passage is in Crown production 15 at the foot of page 66 and top of page 67 as follows:

And then she broke down and started to cry.

There had, of course, been no application to the Court in terms of section 275 of the Criminal Procedure (Scotland) Act 1995 to question V. about any previous sexual behaviour that she had engaged in but an application was then made and allowed in restricted terms so as to clarify what the complainer had said. The Crown had not opposed the application and indeed indicated that they would want to clarify the matter, the Advocate Depute stating that he believed V. to have been confused. When she resumed giving evidence, however, she confirmed that she was not a virgin at the time of the first incident with the accused (page 83). The matter was taken no further with V. but I was informed that in the evidence of her sister E₁, who was the next witness after V., E₁ indicated that there had been some sexual contact between V. and their brother E₂. E₂ was also on the Crown list of witnesses but before he gave evidence the trial was deserted for totally unconnected reasons.

The accused was re-indicted and the next trial commenced before me in the High Court at Paisley on 15 February 2000. By then the complainer V. had become mentally unwell and was not fit to give evidence. The parties were agreed about this. The Crown had given notice that they intended to apply to have the transcript of her evidence given at the earlier trial admitted as evidence in this trial in terms of section 259 of the 1995 Act and the application was made by the Advocate Depute. In the course of the hearing I was informed that the tape recording of her evidence was now available and it was proposed to play that rather than read the transcript. No issue arose on this point.

Mr Macara, solicitor advocate for the accused, however, opposed the application and I heard both sides in argument. It was accepted by Mr Macara that the conditions prescribed by section 259 were met insofar as the position of the complainer was concerned and the question at issue narrowed to whether in those circumstances it was nevertheless open to the Court to rule the evidence inadmissible on the grounds of fairness. Having regard to the words "shall be admissible" in the opening lines of section 259(1) and under reference to the decision of the Criminal Appeal Court in McKenna v H.M.A. (unreported, 13 December 1999) I held that there was no such discretion. I therefore rejected Mr Macara's opposition to the Crown's application and granted the application.

Mr Macara then lodged a minute raising a devolution issue. It proceeded on the basis that for the Crown to lead evidence of the transcript (now the tape recording) of V.'s evidence in the earlier trial would be a breach of the accused's rights in terms of Article 6(1) and Article 6(3) of the European Convention on Human Rights.

Article 6(1) of the European Convention on Human Rights provides, inter alia, that "everyone is entitled to a fair and public hearing" and Article 6(3)(d) of the Convention provides, inter alia, that everyone charged with a criminal offence has the right "to examine or have examined witnesses against him".

In terms of the rules governing such matters in the relevant Act of Adjournal it was agreed that the minute was lodged timeously and had been served on the Crown, but it also required to be served on the Advocate General. The Court adjourned for that to be done and service was effected on the afternoon of 15 February, which was the last day in terms of the rules. On the morning of 16 February I was informed both by the Advocate Depute and by Mr Macara that the Advocate General did not wish to become a party to the proceedings at this stage but reserved her right to do so should the matter come before the Criminal Appeal Court at a later stage. In those circumstances both sides agreed that I should proceed straightaway to deal with the minute.

In his submissions for the accused Mr Macara reminded me of the factual circumstances which had led to the present situation. He also informed me, and the Advocate Depute accepted this, that for the purposes of charge 6 (the only charge which involved the complainer) the only direct evidence was that of V. herself. In this respect the case was distinguishable on its facts from McKenna. The only corroboration possible was by way of application of the Moorov doctrine on the basis of the evidence of the complainer in charge 9 (A.) and possibly the evidence of the complainer in charge 2 (E₁). I say possibly in respect of the complainer in charge 2 because by reason of E₁'s age at the time, that is a charge of what is sometimes called statutory rape. The question of overcoming consent by the use of some degree of force or the threat or apprehension of it does not therefore arise. Similarly the only possible corroboration of E₁'s evidence in charge 2 and A.'s evidence in charge 9 was by application of the Moorov doctrine and it was intended to rely on V.'s evidence in that respect. The credibility of V. was therefore not only of critical importance in charge 6 but was also of major and possibly critical importance in charges 9 and 2. If V.'s evidence given in the earlier trial was admitted, the jury would not be able to judge her demeanour in the sense of seeing her give evidence. Mr Macara accepted, however, that by playing the tape recording of her evidence they could at least hear her evidence and were therefore in a better position to judge it than if it had just taken the form of the written word as usually happens in cases of this kind.

Mr Macara then referred me to the case of Ferantelli v Italy 1996 - III Report of Judgments and Decisions 937. In that case an important witness had committed suicide prior to the trial. He had previously been questioned about the crime in question by the public prosecutor in accordance with what I understand is the usual Italian procedure. After very lengthy further procedure the accused and his co-accused were convicted. Part of the evidence led had been statements given by the deceased witness. The accused and co-accused appealed to the European Court of Human Rights, inter alia, on the ground that they had not been able to examine or cross-examine the deceased witness and that amounted to a breach of their human rights in terms of Article 6(1) and Article 6(3)(d). The Court rejected the argument. In paragraphs 51 to 53 of its judgment the Court said this:

Mr Macara made two points in relation to that case. First, he pointed out that the decision seemed to turn to a considerable extent on the fact that, as is said in paragraph 52, "the Caltanisetta Court of Appeal carried out a detailed analysis of the prosecution witness's statements and found them to be corroborated by a series of other items of evidence." That was a point of distinction from the present case, where there was no such extensive corroboration. Secondly, he stressed the words in paragraph 51 which I quoted earlier. As a rule these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him either when he was making his statements or at a later stage of the proceedings. While it was true that in this case the defence had had the opportunity to cross-examine the complainer in the course of the first trial, that was on the basis of quite different information from what was now available. The accused's defence in this case was that what the complainer alleged simply did not happen, but on the information now available it was open to the defence to cross-examine on the basis that in view of the previous loss of her virginity, and more particularly that that allegedly occurred in a sexual experience with her brother, this could be a case of transferred responsibility, which sometimes occurs in cases of this kind and which could explain the allegations she was now making against the accused. Ferantelli was therefore relied upon for the general statements made by the Court but was distinguishable on its facts. With regard to the question of transferred responsibility being a possible explanation for the complainer's allegation against the accused, Mr Macara said there were direct parallels in the case of Love v H.M.A. 1999 S.C.C.R. 783. That was a case which was concerned with an application to lead evidence of a previous sexual relationship by a young complainer with another person in order to give a possible explanation, inter alia, as to why the complainer had knowledge of matters which would normally not be known by someone of that age and where the Crown's position was that there was no obvious explanation for that but the conduct of the accused. The trial judge refused the application but the Criminal Appeal Court held that that was a misdirection which amounted to a miscarriage of justice. Finally, Mr Macara submitted that the approach of the European jurisprudence was to look at the totality of the position and to assess the question of fairness in that way. Approaching this case in that way the evidence of the complainer given in the earlier trial should not be admitted as evidence in this trial.

In reply the Advocate Depute first of all referred me to the opinion of the judge at first instance, Lord Caplan, in McKenna v H.M.A. (unreported, 21 October 1999) in which at pages 10 and 11 his Lordship set out the principles affecting the application of Article 6 of the Convention. The Advocate Depute adopted what Lord Caplan had said pointing out that in the hearing before the Criminal Appeal Court in McKenna the Crown had not been called on to reply. The Advocate Depute also agreed with Mr Macara that the Court must look at the totality of the position and decide the question of fairness in the light of that. The Advocate Depute reminded me that in Scotland there was an absolute necessity for corroboration of the complainer's evidence. He referred me to a passage in the opinion of the Criminal Appeal Court in McKenna v H.M.A. where Lord Penrose had said this:

The Advocate Depute also relied on the earlier passage in the opinion where his Lordship, having referred to the case of Trivedi v United Kingdom 1997 E.H.R.L.R. Issue 5, 521, said this:

The Advocate Depute also pointed out that in this case it was possible for the defence, subject perhaps to satisfying the Court that an application to question V. herself on the matter had she still been able to give evidence would have been allowed in terms of section 275, to lead evidence in terms of section 259(4) of the 1995 Act that goes to the credibility and reliability of the complainer. In this case that would mean leading the evidence of E₁ and E₂ on the matter. The Advocate Depute also referred me to the case Doorson v Netherlands (1996) 22 EHRR 330. That case reiterated that the approach to fairness is an overall one (see paragraphs 66 and 67 of the Court's Opinion) but the principles of a fair trial required that the interests of the defence should be balanced against the interests of the victims (paragraph 70). This was said in the context of the right to respect for private and family life (Article 8 of the Convention) but should nevertheless be borne in mind here. Then in paragraph 72 it is stated that,

The safeguards for the defence in our procedure in a situation such as this are, first, the safeguards provided by section 259(4), secondly, the requirement for the trial judge to give appropriate directions when charging the jury, and thirdly, the requirement for corroboration. In the present case the Advocate Depute submitted that there were really two grounds for the accused's contention that to lead the earlier evidence of V. was a breach of his human rights. The first was that the jury in this trial would not be in a position fully to assess V.'s demeanour because they would not see her giving evidence, but that was true in any case where the hearsay evidence of an unavailable witness was led. The difficulties created by such a situation could be dealt with by suitable directions by the trial judge. In the present case the accused's position was indeed better than in most cases because the jury would be able to hear V.'s evidence rather than have to rely, as was usual in cases of this kind, on the written or printed word only. The second ground for the accused's contention was that the defence was disadvantaged by being unable to cross-examine V. in the light of the information which had become available since she gave her evidence. But the defence would be able to attack her credibility on the basis of any contradiction which was inherent in her evidence and also on the basis of any evidence led in terms of section 259(4). There would be no opportunity, however, for the complainer herself to respond. Accordingly, any disadvantage lay more with the Crown than the defence.

In my opinion the submissions of the Advocate Depute are to be preferred. I accept that the question of fairness in the context of Article 6(1) and 6(3)(d) of the Convention must be approached in an overall way (Ferantelli, Doorson). There is no necessary unfairness to the accused in his not being able to cross-examine V. (Ferantelli). The question of unfairness must depend on the particular circumstances of the case. I accept, of course, that being the complainer in charge 6 V.'s evidence is critical to that charge and is of major, even critical, importance also in charges 2 and 9. But in Scotland, however cogent the complainer's evidence is, there has to be corroboration. That is in my opinion one important safeguard against any unfairness in admitting this evidence. The fact that the corroboration here can only come by application of the Moorov doctrine is not in my opinion of any weight. The application of the Moorov doctrine is no more than the use of circumstantial evidence to provide the necessary corroboration. There is nothing inherently weaker in circumstantial evidence being used for that purpose. A second important safeguard is that the defence will be able to make use of the provisions of section 259(4). I think that the Advocate Depute was correct to point out that in drafting section 259(4) the draftsman was aware of the potential difficulties presented by admitting hearsay evidence and section 259(4) was an attempt to deal with some of them. Thirdly, I think it is possible to deal with any difficulties created by admitting the evidence by way of suitable directions from myself as trial judge as to how the jury should approach that evidence. In my view these considerations would be sufficient to justify my admitting the evidence, even if it was in the form of a transcript of what was said in the earlier trial. If the evidence is presented in the form of a tape recording in which the present jury can hear V. say what she said, that is, as Mr Macara fairly recognised, an advantage. I fully recognise, of course, that with the information now available Mr Macara's cross-examination in the earlier trial would have been different from what it was. In particular, it would not only have been directed in support of the accused's position that the events charged did not occur, but also at trying to show that V. had transferred responsibility for what had allegedly happened between herself and her brother E₂ to the accused. To that extent Mr Macara has not had the chance to examine or cross-examine V. and the basis on which the earlier cross-examination and the pre-trial precognition took place was on the present information a somewhat false basis. I am not persuaded, however, having regard to all the circumstances that to admit this evidence would amount to a breach of the accused's rights in terms of Article 6(1) and Article 6(3)(d) of the Convention. For these reasons I will refuse Mr Macara's motion and allow V.'s evidence in the earlier trial to be admitted as evidence in this trial.