Scottish High Court of Justiciary Decisons

THOMAS NOBLE THOMSON v. HER MAJESTY'S ADVOCATE [2001] ScotHC 2 (26th January, 2001)

[1] This appellant, after a number of adjournments, was tried in the High Court at Glasgow in August 1999 upon an indictment alleging assault and rape of a woman in her own home on a date in May 1998. After a three day trial on 10 August a jury, by a majority, found him guilty. The trial judge sentenced him to a period of four years imprisonment.

[2] Against that conviction he has lodged a Note of Appeal dated 27 September 1999. In summary the appellant complains that the trial judge refused a motion at the trial to allow questioning of the complainer by the defence about her previous sexual history and a related line of evidence. The proposed line of questions and evidence fell broadly by time and circumstances into three categories and we shall notice the detail of it later. It is said that by excluding this line of questioning and evidence the trial judge erred, and as a result there has been a miscarriage of justice.

[3] The statutory background to this Note is to be found in the Criminal Procedure (Scotland) Act, 1995 sections 106, 274 and 275 which provide inter alia as follows:

We are satisfied, from the scheme of the Act, that if the trial judge erred in refusing to allow the questioning or admit the evidence that would be contrary to the interests of justice. It must logically follow that such an error would amount to a miscarriage of justice and any conviction would have to be quashed.

[4] The motion just mentioned arose on the first day of the trial (6 August) and is reported to us in the extract report of proceedings for that date. The relevant passages are to be found from pages 5C to 20A. We may conveniently summarise the matters now complained of as follows.

[5] Firstly, it was proposed to ask the complainer about allegations she may have made in 1991 to the Social Work Department of Central Regional Council. These concerned alleged consensual sexual relations when she was a minor with two persons identified only as "D" and "B" and an allegation of attempted rape against "B". It was said that "D" denied the allegation but it was unclear whether "B" denied them. The matter was reported to the police and the procurator fiscal. It was documented.

[6] Importantly neither "B" nor "D" whoever they were, were cited as defence witnesses. Accordingly had the complainer ever been asked to confirm the truth of these allegations her affirmative answer could never have been contradicted.

[7] Secondly, it was proposed to ask the complainer whether in 1995 she made certain remarks to a defence witness, Lorna McGovern, at a time when the complainer was to be taken to hospital with self-inflicted wounds. It was to be suggested that she had said to Lorna words to the effect "...they put me in ward 30 and all the doctors raped me..." and that such was an untrue allegation and one never reported.

[8] Thirdly, and finally, it was proposed to ask her about allegations of sexual abuse of her by her stepfather, made by her, and then retracted by her, in conversation with a now deceased boyfriend (Alan Smith). The point was that she found it easy to make and retract such allegations. Clearly the boyfriend could not now be a witness.

[9] As the argument developed it was clear that counsel could not really support his grounds in respect of D and B nor the matters relating to the stepfather. D, B and the stepfather were not defence witnesses. The former boyfriend was deceased and what he had to say about material matters was in the form of a precognition and so not admissible in evidence. The matter was not seriously pressed and we think counsel was wise not to do so.

[10] At the trial (transcript p. 56) the judge, without giving reasons, refused cross-examination on all these matters as being irrelevant to the issues in the trial. There can be no criticism of that as he was only obliged to make a ruling. In his report we now have the benefit of his reasons and comments on the Note. The report tells us, pages 18 and 19 from paragraph 4 onwards, why he refused to allow the questioning on the first and third matters raised in the Note of Appeal.

[11] As we have already noted in argument before us Mr. Neilson very fairly acknowledged that without witnesses or anyone to speak to the Social Work papers counsel at the trial could not have contradicted the complainer if she denied she had ever made these allegations; and that he would simply have been "fishing" for a positive answer. It is not necessary for us to deal with this in any detail, suffice to say that we entirely agree with the reasons given by the trial judge in his report. There were to be no witnesses to any of the allegations or any retraction of allegations. The circumstances were different, dated and without any conclusions. It is our opinion that the trial judge properly exercised his discretion under section 275 to exclude any such questioning.

[12] The leaves only the second matter which, for convenience, we refer to as the "hospital ward allegations". Counsel argued that the trial judge wrongly excluded questioning on this matter and pointed to the fact that Lorna McGovern would have been a witness. In that situation if the complainer denied the remark the contrary could have been proved by Lorna.

[13] In the transcript this matter appears at page 11 and nowhere else. In his report to us the trial judge deals with the matter at pages 18 and 19. He refused to allow the question because in his opinion the incident was of an entirely different nature and was 3 years before the charge. Describing it as irrelevant to any issue at the trial, he pointed to the fact that it was divorced in time, nature and circumstances from the case before him. Accordingly he disallowed it.

[14] The judge also had cited to him the case of Green v. H.M. Advocate 1983 S.C.C.R. 42 which was referred to before us. In that case the appellants had been convicted of rape against a defence of consent. They appealed and sought to lead evidence that the complainer had made previous false allegations of rape; was suffering from a psychiatric disturbance which caused her to fantasise and have delusions, and also that she had told someone that she had not been raped by the appellants.

[15] The fresh evidence was led before a single judge, Lord Cameron. He heard five witnesses, one of whom was a consultant psychiatrist, and reported (see pages 48/9). In his report he describes this body of testimony as "...being of such a quality and relevance to the critical issue of consent as to have weighed very heavily with a jury...". In the result the conviction was quashed, the Crown not supporting it.

[16] We have come to the view that on the matter of the "hospital ward allegations" the trial judge properly exercised his discretion by excluding questions about it. He applied the correct test which was the interests of justice. He had regard to the prohibitions in section 274 and took proper account of the timing, nature and circumstances of these allegations. Such broad allegations at a time of stress are plainly very different from a specific claim such as is here in point. Other trial judges might have taken a different view but there are no hard and fast rules. We are quite unable to say that no judge acting reasonably would have refused to allow this line of questioning.

[17] We also agree with the trial judge that the case of Green disclosed a wholly different set of circumstances, and is not in point.

[18] In the result this appeal cannot succeed, but in passing we wish to record that the point made was properly taken and well argued. The appeal is refused.