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Cite as: [2003] ScotHC 31

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GDN v. Her Majesty's Advocate [2003] ScotHC 31 (09 May 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord MacLean

Lord Hamilton

Appeal No: C230/00

OPINION OF THE LORD JUSTICE CLERK

APPEAL AGAINST CONVICTION

G D N

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Scott, QC, Shead; Bennett and Robertson

Respondent: Johnston, AD; Crown Agent

9 May 2003

The conviction
[1] On 28 February 2000 at the High Court at Paisley the appellant was convicted of the following charges:

"(1) on various occasions between 1 January 1977 and 9 December 1987, both dates inclusive, at ... you did conduct yourself in a shamelessly indecent manner towards EN ... and did handle her private parts, expose your private member to her, masturbate in her presence, ejaculate over her, induce her to handle your private member and to masturbate you, rub your private member against her private parts and simulate sexual intercourse with her, exhibit video tapes containing material of an indecent nature to her ... ejaculate upon her, induce her to procure DV ... and AS ... for you for the purpose of having sexual intercourse with them ...

...

(3) on various occasions between 10 December 1979 and 30 October 1986, both dates inclusive, at ... you did have unlawful sexual intercourse with EN ... : CONTRARY to the Incest Act 1567;

...

(6) on various occasions between 23 April 1978 and 22 April 1983, both dates inclusive at ... you did conduct yourself in a shamelessly indecent manner towards VN ... and did handle her private parts, insert your fingers into her private parts, attempt to induce her to masturbate you, attempt to induce her to insert your private member into her mouth, lie on top of her, ejaculate over her and have sexual intercourse with her;

...

(8) on various occasions between 26 June 1982 and 25 June 1987, both dates inclusive, at ... you did conduct yourself in a shamelessly indecent manner towards AN ... and ... exhibit a video containing material of an indecent nature to her and on one occasion did induce her to remove her clothing, make indecent suggestions to her, induce her to lie on a bed, lie on top of her and did rub your private member against her private parts and simulate sexual intercourse with her ... "

Charge (6) was framed in the alternative as a charge of rape or shameless indecency. The appellant was convicted on the second alternative, the trial judge having directed the jury that there was insufficient evidence to entitle them to convict on the first.

[2] VN, EN, and AN, the complainers on these charges, are sisters born in 1965, 1967 and 1970 respectively. They have two brothers, one of whom, E, was born in 1966. The evidence of each of the complainers was critical on the charge or charges that related to her. Although the Crown relied on certain eye-witness evidence as corroboration on charges (1), (3) and (8), it relied primarily, on all four charges, on the evidence of one or more of the three complainers as corroboration on the Moorov principle (1930 JC 68). It was obvious from the outset, to the parties at least, that if any one of the complainers was not believed, that would not only be fatal to the charge or charges on which she was the complainer but would also be damaging to the Crown case on the other charge or charges on which the Crown relied on her evidence for corroboration.

The first trial
[3] This was the second occasion on which the appellant stood trial on this indictment. The first trial took place in July 1999. When speaking to charge (6), VN referred to an occasion on which she had had intercourse with the appellant for the first time. It appears that both the Crown and the defence had gone to trial in the belief that before that occasion VN had been a virgin. In cross-examination, quite unexpectedly, VN said that she had had previous sexual experience. She then became distraught. When she was able to resume her evidence, she confirmed that she had not been a virgin when she first had intercourse with the appellant. This matter was not pursued further with her.

[4] EN then gave evidence. She said that E had had intercourse with her and with VN when they were younger. This evidence came as a surprise to both the Crown and the defence. The point had not been put to VN and she herself had not alluded to it. It would have been open to the Crown or the defence to have VN recalled so that she could be examined on the matter; but that opportunity did not arise because, during the evidence of AN, for a reason not connected with the evidence of the girls, the diet had to be deserted pro loco et tempore.

The second trial
[5] When the case came to trial for the second time, VN was unfit to give evidence. The Crown served notice under section 259 (infra) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) of its intention to rely upon a transcript of VN's evidence at the previous trial. Before the jury was empanelled, the solicitor advocate for the appellant objected to the admission of this evidence, as a matter of Scots law, on the ground that the admission of it would deprive the appellant of a fair trial. He argued that the court had a discretion under section 259 to exclude the evidence in such circumstances. The trial judge granted the Crown's motion. He considered that he had no discretion to exclude the evidence (cf. HM Adv v N, 2000 SCCR 431, at p. 434A).

[6] After the trial began, the solicitor advocate for the appellant lodged a minute raising a devolution issue based on the plea that the admission of the hearsay would infringe the appellant's right to a fair trial under article 6 of the European Convention on Human Rights (the Convention). Article 6 provides inter alia that a person charged with a criminal offence is entitled "to examine or have examined witnesses against him" (art. 6(3)(d)). The trial judge rejected the plea. He considered that there were three important safeguards against unfairness, namely the requirement of corroboration, the opportunity given to the defence by section 259(4) to lead evidence about the credibility of the maker of the hearsay statement and the opportunity given to the trial judge to deal with any difficulties created by hearsay by way of suitable directions to the jury (ibid, at p. 437C-E). Thereafter the Crown led the evidence of the complainers and others.

[7] EN gave evidence in support of the charges in which she was involved. Her evidence was the same in all material respects as her evidence at the first trial. The Crown then came to the hearsay evidence of VN. By then the Crown had obtained the tape recording of her evidence at the first trial. By agreement of the parties, the tape was played to the jury. The jurors had copies of the transcript before them as they listened to it.

[8] One of the other Crown witnesses was DV. In relation to charge (3) she spoke to a specific occasion on which, according to EN, the appellant had had intercourse with EN in a car. DV said that she had been standing outside the car at the time. In the course of his charge, the trial judge directed the jury that DV's evidence was capable of corroborating EN's evidence on the point.

[9] At the close of the Crown case, the solicitor advocate again raised the devolution issue by way of a motion to the trial judge that he should rule that the hearsay evidence should be disregarded. If granted, that motion would have had wider implications. The trial judge rejected it for reasons that are not reported. I infer that he was influenced by the three safeguards to which he had referred earlier (supra). Evidence was then led for the defence.

Section 259 of the 1995 Act
[10] Section 259 of the 1995 Act re-enacts section 17 of the Criminal Justice (Scotland) Act 1995. So far as material to this appeal, it provides as follows:

"259.-(1) Subject to the following provisions of this section, evidence of a statement made by a person otherwise than while giving oral evidence in court in criminal proceedings shall be admissible in those proceedings as evidence of any matter contained in the statement where the judge is satisfied-

(a) that the person who made the statement will not give evidence in the

proceedings of such matter for any of the reasons mentioned in subsection (2) below;

(b) that evidence of the matter would be admissible in the proceedings if

that person gave direct oral evidence of it;

the statement was made, a competent witness in such proceedings; and

(d) that there is evidence which would entitle a jury properly directed, or

in summary proceedings would entitle the judge, to find that the statement was made and that either-

(i) it is contained in a document; or

(ii) a person who gave oral evidence in the proceedings as to the

statement has direct personal knowledge of the making of the statement.

(2) The reasons referred to in paragraph (a) of subsection (1) above are that the person who made the statement-

(a) is dead or is, by reason of his bodily or mental condition, unfit or

unable to give evidence in any competent manner; ...

(4) Where in any proceedings evidence of a statement made by any person is admitted by reference to any of the reasons mentioned in paragraphs (a) to (c) and (e)(i) of subsection (2) above-

(a) any evidence which, if that person had given evidence in connection

with the subject matter of the statement, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings;

(b) evidence may be given of any matter which, if that person had given

evidence in connection with the subject matter of the statement, could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and

making the statement, made in whatever manner some other statement which is inconsistent with it shall be admissible for the purpose of showing that he has contradicted himself."

The charge to the jury
[11] For the purposes of this appeal, the relevant directions are those in which the trial judge dealt with the evidential value of the hearsay of VN and of the eye-witness evidence of DV on charge (3).

On the subject of VN's evidence, he said:

"Now, when assessing the evidence there are one or two further things I should say about how you should approach it. I said a moment ago that evidence is generally what a witness says in the witness-box, in the answers that the witness gives in the witness-box. Now, in this case VN did not give evidence from the witness-box. She's not fit to give evidence, and so what happened was that her evidence in the earlier trial, the one you heard about that had to be deserted for completely unconnected administrative reasons, her evidence in that trial was allowed to be led in this trial. You heard the tape-recording of that and you were able to follow it with the transcript.

Now, that evidence falls into the category of hearsay evidence. It was evidence of what VN was heard to say on an earlier occasion. Now, hearsay evidence is not normally admissible as evidence. That is why counsel sometimes tell witnesses not to tell us what someone else said or told them what happened because, as I say, hearsay is generally not admissible as evidence. That's the general rule but, as with many general statements of what the law is, there are exceptions and the position with regard to VN is one of them. What we heard VN say on the tape, and what we read on the transcript, was hearsay but, because she's not now fit to give evidence, what she said on that earlier occasion is allowed to be put before you for your consideration, in deciding what is proved to have happened in relation to the charges ... to charge 6 in particular, and possibly, depending on your view of corroboration which I will come to later, on other charges.

In relation to charge 6, as the advocate depute said on Friday, and I'll explain in a moment that is charge 6, part 2, the second alternative in charge 6 and, as I say, I'll explain how that comes to be in a moment, not charge ... not part 1, but just charge 6, part 2, but, when you're considering the ... what VN said on that earlier occasion, do please remember this: she was on oath of course on that occasion and you heard the way she give her eviden ... she gave her evidence, as well as what she actually said, you did not see her give her evidence, and so to that extent you can't assess her demeanour and, in one respect, which you may think of some importance, she was not examined or re-examined." (pp. 7-9) ...

... Now, it was after that, after VN had finished her evidence, that information first came to hand, to both sides, in EN's evidence in that trial, and in that trial she was the next witness after VN and she made the allegation that there had been sexual contract between both herself and VN and their brother E and she made the same allegation in this trial.

Now, if that trial, that first trial, had not been deserted, VN might well have been recalled to the witness-box and asked about those allegations, but other things intervened and the trial was deserted. So, the result is that she was not asked about it and, obviously, if she'd been fit to give evidence in this trial, she would have been asked about it here and, no doubt [the solicitor advocate for the defence] would have suggested to her, as he did to EN, that it is because of her alleged previous sexual experience with her brother E that she is in her mind transferring the responsibility for that to the accused and making the allegations that she is making. So, to that extent the evidence that you have heard from her, her hearsay evidence in this trial, is incomplete and, indeed, the way in which the questions were put and her answers given might well have been quite different in this trial, people knowing now what they do

know.

Now, we don't know what her evidence would have been if the allegation about E had been known about and, when she was being asked questions and, you mustn't speculate as to what it might have been. You have to decide the case, as I've said, on the basis of the evidence that you have heard but, when considering VN's hearsay evidence, and assessing its credibility and reliability, do keep in mind these particular points that I've been mentioning" (pp. 13-14).

In his directions on charge (3), the trial judge said that DV was one of two possible sources of corroboration of EN. He continued:

"Now, again let me remind you it's your recollection that ... of the evidence that counts, not mine but, if your recollection squares with my note, you'll remember that DV said that she went with EN and the accused in a car, which she said was a Mercedes, she was 13 and she said she ended up getting out of the car at [a locus]. She started panicking because things shouldn't have been happening like that and, EN pled with her to get back into the car. She did, it drove away again. They, she said, assured me that I would be okay. They were going to have sex and I was to watch. The car stopped. I said I wasn't going to watch. I got out of the car. She said, that's EN said, she would call me when she'd ... when they were finished. I saw nothing happening. I heard nothing happening. She did call me when she was finished. I went back into the car and EN said it was okay and they went back to [a locus] and were dropped off, and that she said was in 1982.

Now, it may be ... what you make of that evidence is entirely a matter for you but you may be able to draw an inference from that evidence which would suffice as corroboration for what EN said happened to her but, as I say, that is entirely a matter for you." (pp. 31-32).

Grounds of appeal
[12] Counsel for the appellant argued three grounds of appeal, namely (1) that the trial judge erred in admitting the hearsay evidence of VN because the conditions of section 259 were not made out; (2) that the trial judge erred in admitting that evidence because it violated the appellant's right to a fair trial under article 6 of the European Convention on Human Rights (the Convention) and the leading of it was therefore ultra vires of the Crown (Scotland Act 1998, s. 57(2)); and (3) that the trial judge misdirected the jury on charge (3) when he directed them that the evidence of DV was sufficient to corroborate the evidence of EN.

Conclusions
(1) Was the hearsay evidence admissible under section 259?
[13] Counsel for the appellant submitted that, on the plain terms of section 259, this evidence was inadmissible. The section permits the admission of "evidence of a statement made by a person otherwise than while giving oral evidence in court in criminal proceedings." The hearsay in this case constituted a statement made by VN while she was giving oral evidence at the previous trial. Section 259 therefore ruled it out.

[14] The advocate depute submitted that the obvious purpose of the section was to make such hearsay admissible. There was no apparent reason why such evidence should be excluded from the scope of the section.

[15] In my opinion, while the section could have been better expressed, its meaning is nonetheless clear. The words "evidence of a statement made by a person otherwise than while giving oral evidence in court in criminal proceedings" are a circumlocution for hearsay evidence. Section 259(1) is merely a general provision that hearsay evidence, as so described, shall be admissible in criminal proceedings. In my view, the interpretation proposed by counsel for the appellant fails to give due weight to the words "in those proceedings." While the statements of VN in this case were made by her while she was giving oral evidence in court in criminal proceedings, the statements were not made by her in the criminal proceedings in which the evidence of them was tendered. I can see no obvious purpose in the exclusion from the ambit of the section of all oral evidence given in court in criminal proceedings, particularly since that is a kind of hearsay that is given on oath or affirmation and is authoritatively recorded. In my opinion, this ground of appeal proceeds on a misinterpretation of section 259.

(2) Did the trial judge err in admitting the evidence?
[16] This ground of appeal raises two questions. The first is whether, as a matter of Scots law, the trial judge had a discretion to exclude the evidence. This is a straightforward question of statutory construction. The second question is whether the admission of the evidence led to a breach of the appellant's right, under article 6 of the Convention, to a fair trial. This question raises certain procedural problems that I shall discuss.

The existence of a discretion under section 259
[17] Counsel for the appellant submitted that the trial judge erred in concluding that he was obliged to admit the evidence. Section 259 impliedly left the admission of such evidence to the discretion of the court. The court would allow an appeal where a wrongful exclusion of a material line of cross-examination had been unfair to the defence (Mackenzie v Jinks, 1934 JC 48; Hughes v Crowe, 1993 SCCR 320; Patterson v Howdle, 1998 SCCR 41). A similar principle should apply where the allowance of evidence that was otherwise admissible and relevant would be unfair to the defence.

[18] The advocate depute did not support the reasoning of the trial judge on this question. She conceded that section 259 permits the court to exclude hearsay evidence even where it meets the conditions for admissibility set out in the section.

[19] Section 259 is a major innovation in the law of criminal evidence. It makes hearsay evidence admissible in the wide range of cases set out in subsection (2). Since it is possible under that section to lead hearsay evidence from two separate sources, the section appears to make it possible that an accused person could be convicted by a jury entirely on hearsay evidence. The limitations of the section will be worked out by the court as and when specific problems arise. In the present case, however, we are confronted by a fundamental question, namely whether section 259 allows to the court any discretion to exclude hearsay evidence that qualifies for admissibility under subsections (1) and (2).

[20] The trial judge concluded that section 259 gave him no such discretion (cf. HM Adv v N, supra). In reaching that conclusion, he relied on the words "shall be admissible" in section 259(1) and on the decision of the appeal court in McKenna v HM Adv (2000 JC 291; 2000 SCCR 159).

[21] In my opinion, the trial judge was right in the conclusion that he reached. But I do not consider that McKenna v HM Adv (supra) properly supports it. The rubric of the report of that case in the Scottish Criminal Case Reports states that the trial judge has no discretion to exclude any statement that is admissible in terms of the section (cf. 2000 SCCR, at p. 160D-E); but in that case the point was conceded. At the trial in that case the defence objected to the leading of evidence of a statement made by a deceased person on the ground that that evidence would deprive the accused of a fair trial under article 6. When the question was debated before the trial judge, counsel for the defence conceded that the court had no discretion whether to admit or exclude the evidence (ibid at pp. 163C-D; 167F-G). When the case was before the appeal court, that point was not in issue; but it appears that counsel for the appellant did not depart from the concession that she had made at the trial. For that reason, in my view, the case is not authority for the proposition that the trial judge took from it.

[22] That takes us back to the interpretation of the section. In my opinion, the advocate depute's concession on this point was wrongly made. I think that the trial judge was correct in his conclusion that the terms of section 259 required him to admit the evidence.

The current edition of Renton and Brown contains the following statement:

"The judge is also entitled to inquire into how the statement was taken and what it contains, but he may do so only for the purpose of determining whether the conditions set out in the section are satisfied. He is not given any general right to refuse to allow hearsay where the statutory circumstances are made out. That is to say he does not have any statutory power to hold that despite the existence of the statutory circumstances it would be unfair to the accused or contrary to the interests of justice to allow a party to rely on the hearsay statement. This in marked contrast to the English position where the judge may refuse to admit hearsay evidence of a statement which is admissible in terms of the circumstances set out in the English Criminal Justice Act 1988 ... if he is of the opinion that in the interests of justice it ought not to be admitted (Criminal Procedure, 6th ed., para. 24-130)."

This, in my view, is an accurate statement of the law. In a footnote to this comment the editor observes that this absence of judicial discretion follows the recommendation of the Report of the Scottish Law Commission, Evidence: Report on Hearsay Evidence in Criminal Proceedings (Scot Law Com No 149 (1995), paras. 4.36ff.) on which the legislation is based.

[23] Section 259(1) provides that, if certain conditions are fulfilled, hearsay evidence "shall be admissible." In contrast with the corresponding English legislation, it does not confer any express power on the court to exclude evidence qualifying for admissibility in this way. On the contrary, in my view, the plain and satisfactory interpretation of those words is that evidence qualifying under section 259(1) is competent evidence in every case. Whether it is relevant is another matter.

[24] I have reached this conclusion with regret. Before section 17 of the Criminal Justice (Scotland) Act 1995 came into force, hearsay evidence of a statement was admissible in a criminal trial only where the maker of the statement was dead or was permanently insane (HM Adv v Monson (1897) 21 R (J) 5, at pp. 9-10). Where such hearsay was admissible, the court had a discretion to exclude it if there were grounds for a reasonable suspicion that it was not true or that it was a coloured or one-sided version of the truth (Lauderdale Peerage Case, (1885) 10 App Cas 692, Lord Watson at pp. 706-707). Notwithstanding section 259, the long-recognised dangers in such evidence remain (cf. Walker's Trs v McKinlay (1880) 7R (HL) 85, at p. 98).

[25] Section 259 not only extends the range of admissible hearsay but also disarms the court of the discretion that it previously enjoyed to exclude it. I have strong reservations about the policy recommendation of the Scottish Law Commission on which this aspect of section 259 is based (op. cit., Rec. 20). Hearsay evidence may be true and it may be highly relevant. It is therefore understandable that the trend in modern evidential legislation to extend the range of admissible evidence should have resulted, in both England and Scotland, in general provisions for the admission of such evidence. But hearsay is by its nature a less satisfactory form of evidence than direct evidence spoken to in the face of the court and tested by cross-examination. Where a general provision such as section 259 applies, there are bound to be cases in the circumstances of which hearsay evidence would be so prejudicial to the fairness of the trial that the only just and proper course would be to exclude it. This, I think, is such a case.

[26] I am not impressed by the three safeguards to which the trial judge referred (HM Adv v N, supra, at p. 437C-E). The requirement of corroboration is a neutral consideration. It is a safeguard that applies to prosecution evidence in any form. I cannot see what worthwhile safeguard the principle of corroboration provides if the primary evidence sought to be corroborated is per se unfair to the accused. Moreover, the leading of evidence bearing upon the credibility of the maker of the hearsay statement may be at most an exercise in damage limitation where clearly prejudicial evidence has already been led. As for the safeguard of the judge's directions, I think that there may be cases where the hearsay evidence is so prejudicial that no direction, however strong, could make adequate amends for the unfairness of its having been admitted. In this case, as it happens, the trial judge's directions on the point simply added to the problem. I will return to that subject later.

[27] In English provisions governing the admissibility of a statement made in a document, Parliament has expressly conferred a discretion on the court to exclude such a statement if it is of the opinion that in the interests of justice it ought not to be admitted. One specific consideration to which the court must have regard is the risk that the admission of the evidence will result in unfairness to the accused (Criminal Justice Act 1988, s. 25(1), (2)(d); 26(ii); cf. Abas Kassimali Gokal, [1997] 2 Cr App Rep 266). These, in my view, are prudent provisions. If provisions of this kind had been available to the trial judge in this case, they could have enabled him to exclude the hearsay at the outset.

Whether the admission of the evidence led to a breach of the appellant's rights under article 6?
[28] In my opinion, section 259 has the further effect that when hearsay evidence is admitted under the section, the court has no power under the section thereafter to exclude it, or to direct the jury to disregard it. However, since this trial took place after the passing of the Scotland Act 1998, the court was required to take notice of article 6 (1998 Act, s. 57(2)). That obligation arose at the outset and continued throughout the trial. Counsel agree that section 259 does not per se contravene article 6. However, the circumstances of the case may result in such a contravention.

[29] Counsel for the appellant submitted that the effect of the hearsay was to infringe the appellant's rights under article 6. VN was a vital witness on all four of the charges of which the appellant was convicted. EN's evidence at the first trial had raised a material question affecting VN's evidence. Examination of VN on that question had been prevented by the abandonment of the trial. By leading that evidence in hearsay form at the second trial, the Crown deprived the defence of the opportunity to raise that question with VN herself. Counsel for the appellant cited several decisions of the European Court of Human Rights in support of the propositions that an accused person should be given an adequate and proper opportunity to challenge the evidence of a witness against him and that the use of a statement as evidence against an accused person is unfair where it appreciably restricts his right to a fair trial. I need not go into these decisions because the Crown does not dispute either proposition.

[30] The advocate depute conceded that, for the reasons given by counsel for the appellant, the admission of the evidence in this case deprived the appellant of a fair trial. This concession, in my opinion, was rightly made. VN's evidence was the only direct evidence on charge (6). For there to be a conviction on that charge, her evidence had to be accepted by the jury as credible and reliable before any question arose of its being corroborated on a Moorov basis. The Crown also relied on VN's evidence as a source of corroboration on charges (1), (3) and (8). EN's evidence at the first trial had a vital bearing on VN's evidence, because it raised doubts as to VN's credibility and, potentially, her own.

[31] If the first trial had run its course, it would have been inevitable, I think, that VN would have been recalled. In that event, if VN had agreed that she had been abused by E, she might have cast doubt on the credibility of her evidence that she had been abused by the appellant. Her failure to disclose that matter before the trial or in her earlier evidence would have cast further doubt on her credibility. On the other hand, if she had denied that E had abused her, that would have meant that either she or EN was lying. On either hypothesis, therefore, further cross-examination of VN would have been likely to damage the Crown case. In leading the hearsay evidence that VN had given at the first trial, the Crown got the benefit of that evidence, so far as it supported the libel, while the defence was deprived of the opportunity to examine VN on the questions about her credibility and reliability that EN's evidence had raised. That put the defence at an unfair disadvantage. While it would have been open to the defence to lead evidence regarding the circumstances of the first trial so far as they affected the evidence of VN, and in particular to bring out the significance of EN's evidence so far as it affected the credibility of the taped evidence to which the jury had listened, that was scant redress for the damage done by the hearsay itself.

[32] The question whether an accused's rights under article 6 have been infringed can in an exceptional case be decided before the trial begins (cf. R v A (No 2) [2001] 2 WLR 1546, at para. [107]). It is unnecessary to decide whether, as I incline to think, the appellant's rights under article 6 were infringed when the trial judge refused the crave of the devolution minute at the start of the trial or when he later refused to rule that the evidence should be disregarded. By the conclusion of the Crown case, at the latest, it must have been obvious that the Crown's use of section 259 had caused unfairness to the defence. In my opinion, the trial judge should at the stage have made the ruling requested by the defence. But if that had not been appropriate at that stage of the case, I consider that he should in due course have directed the jury to acquit. For that reason alone, I consider that there was a miscarriage of justice.

[33] In the event, the trial judge left the whole evidence to the jury and in doing so misdirected them in a material respect. He was plainly anxious in his charge to emphasise to the jury the pitfalls that attended the allowance of the hearsay evidence. He dealt with this aspect of the evidence over about five pages of the transcript of his charge. In doing so, in a passage that I have quoted (cf. charge, p. 13), he pinpointed the problem to which his decision to admit the evidence had led. He was right to say that if VN had given evidence, her evidence might have been different. But he then directed the jury to take account of what VN had said at the first trial, and not to speculate about what she might have said had she been questioned regarding the allegation about E. That was in effect a direction to the jury to exclude from their minds the possibility that VN would have gone back on her evidence at the first trial in any material respect. In other words, it was a direction to take account of VN's evidence at its highest, from the Crown's standpoint, and to disregard the doubts that EN's evidence raised about both VN's evidence and her own. That, in my view, was a material misdirection. While it is normally right to direct a jury to decide the case on the evidence that they have heard, and not on speculation, it was necessary in this case to direct the jury that EN's evidence raised important questions about VN's credibility that remained unresolved and that that was a significant factor for them in their consideration of the question of reasonable doubt.

[34] For these reasons I consider that the trial judge misdirected the jury in a material respect in relation to the evidence of EN. On the assumption that he should have let the case go to the jury, I consider that that misdirection led to a miscarriage of justice.

Procedural questions
[35] If I am right in the conclusion that the court has no discretion under section 259 to exclude hearsay that qualifies under the section, that has serious procedural implications. When such evidence is admitted, whether on the application of the Crown or the defence, the full evidential significance of it may not be immediately apparent. In my opinion, it is the continuing duty of the trial judge under article 6 to consider carefully the fairness of such evidence as the trial progresses.

[36] If it should later become clear that the hearsay evidence is unfair to the party against whom it is led, the trial judge will have a number of options. Where the hearsay evidence has been led by the defence, he will be entitled to direct the jury to disregard it. Where the evidence has been led by the Crown, he may have to uphold a submission of no case to answer; or desert the diet at his own hand; or direct the jury to disregard the hearsay; or direct the jury to acquit.

[37] But even where it is appropriate for the hearsay evidence to go to the jury, fairness requires that the trial judge should give an explicit direction about the dangers inherent in such evidence. He should remind the jury that they have not had the opportunity to assess the credibility and reliability of the maker of the statement at first hand. He should point out that the truth of the statement has not been tested by cross-examination. If the statement was not made under oath or affirmation, he should comment on that too. The trial judge should also direct the jury that they must assess the weight of such evidence with care. If there are any dangers in the hearsay evidence that are special to the facts of the case, for example the age or state of mind of the maker of the statement, or any interest in the outcome, or any improper motive on his part, or any other factor bearing on his credibility and reliability, the trial judge should give explicit directions on that point too (cf. McKenna v HM Adv, supra, 2000 JC 291, at p. 295C-D).

(3) Was there a misdirection in relation to the evidence of DV on charge (3)?
[38] Counsel for the appellant submitted that the trial judge misdirected the jury in saying that the evidence of DV on charge (3) was capable of corroborating the evidence of EN. The advocate depute conceded that that was a material misdirection. In my opinion, that concession was rightly made. DV gave no eye-witness evidence about what took place in the car. She simply told the court what EN said to her at the time. That evidence could merely confirm EN's credibility. It could not corroborate EN's evidence as to the commission in the car of one of the offences libelled in the charge. If the trial judge had directed the jury that the evidence of DV did not provide corroboration of EN's evidence, the jury would have had to consider the evidence on this charge solely on a Moorov basis. That would again have raised the question as to the credibility of VN. For these reasons, I consider that this too was a misdirection that led to a miscarriage of justice.

Disposal
[39] I propose that we should allow the appeal and quash the convictions.

GDN v. Her Majesty's Advocate [2003] ScotHC 31 (09 May 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord MacLean

Lord Hamilton

Appeal No: C230/00

OPINION OF LORD MacLEAN