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Cite as: [2003] ScotHC 38

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Tant v. Her Majesty's Advocate [2003] ScotHC 38 (01 July 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Kirkwood

Lord McCluskey

Appeal No: XC347/02

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

NOTE OF APPEAL AGAINST CONVICTION

JAMES TANT

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

______

Appellant: Shead; Wilson McLeod

Respondent: McKenzie, A.D.; Crown Agent

1 July 2003

[1] The appellant stood trial on a charge of rape committed on 28 April 2000, and a charge of attempted rape committed on 11 November 2000. On 14 March 2001 he was found guilty as libelled on the first of these charges. On the second, he was found guilty only of indecent assault.

[2] In regard to the first charge, the Crown founded on the evidence of the complainer, and the evidence of other witnesses as to her distress and certain de recenti statements. As regards the second charge, the Crown founded on the evidence of the complainer. For corroboration of her evidence of assault, reliance was placed upon the evidence of the witness who came on the scene after the incident. For the allegation of attempted rape, which the jury did not find proved, reliance was placed on the relation in time, place and circumstance between the evidence on that charge and that relating to the first charge, in accordance with the principle in Moorov v H M Advocate 1930 JC 68.

[3] It is convenient for us in the first place to deal with the appellant's grounds of appeal which relate to the trial judge's charge.

[4] In ground of appeal 4 it is maintained that he did not deal with how the jury were to treat the evidence of the appellant, particularly in the situation where they did not believe his evidence. At page 9 of his charge the trial judge directed the jury as to the presumption of innocence. He stated:

"An accused person does not require to prove any matter. There is no onus of proof on him and any evidence which raises a reasonable doubt in your minds about an accused person's guilt must result in his acquittal".

[5] Mr Shead, who appeared for the appellant, submitted that the trial judge should have gone further than this general reference to evidence which raised a reasonable doubt, and should have explicitly pointed out to the jury that, even if they did not believe the appellant's evidence, if it raised a reasonable doubt as to his guilt they should acquit him. He pointed out that, while the trial judge had reminded the jury that the appellant's defence in regard to the first charge was that sexual intercourse had taken place between him and the complainer with her consent, whereas his defence in regard to the second charge was that the incident alleged by the complainer on that charge had not happened at all, he did not provide the jury with a full summary of his evidence.

[6] In our view this criticism of the charge is not well-founded. The decision in Murray v H M Advocate 2000 SCCR 1, which was cited by Mr Shead, provides an extreme example in which there was a failure to give the jury standard directions on how they should approach the evidence of the accused, including a direction that corroboration was only required for proof of guilt by the Crown, as well as a failure to give any real account of the accused's evidence. The present case contains no such fundamental failure to give adequate directions to the jury. It is always a question of circumstances, depending on the evidence and the terms used by the trial judge, whether a more explicit direction should be given to the jury. In the present case he directed the jury that

"any evidence which raises a reasonable doubt in your minds about an accused person's guilt must result in his acquittal".

That was said in the context of there being no onus of proof of the appellant. We are not persuaded that the trial judge should have given a more explicit direction to the jury than that.

[7] In the next ground of appeal it is maintained that the trial judge invited the jury to speculate by directing them that they could have regard to hair clasps and Kirby-grips which were found on the floor of the bedroom of the complainer in the first charge. He observed that the jury might think that they gave some indication that there had been a struggle there. Mr Shead informed us that the complainer had given evidence that she was wearing such clasps and grips. However, although police officers had given evidence as to finding them on the floor, she had not been asked to comment on this. In our view the trial judge was entitled to remind the jury of this evidence as having some possible significance in regard to the evidence of the complainer that there was a struggle in her bedroom where the appellant indecently assaulted her. It is also important to note that the trial judge also invited the jury to have regard to the evidence on which counsel for the appellant had founded that the bed appeared to have not been greatly disturbed.

[8] In a further ground of appeal it is maintained that in two respects the judge's charge was confusing and misleading. At page 17, in the course of giving directions to the jury as to the purpose for which they could use evidence of de recenti statements, he said:

" ... as I have told you already, you can have regard to that for purposes only of supporting [the first complainer's] corroboration. These statements cannot amount to corroboration or to independent proof of any fact".

It is quite clear, in our view, that the word "corroboration" in the first sentence quoted could not have led the jury to think that such evidence could be used to corroborate the evidence of the complainer, since in the second sentence quoted the trial judge clearly directed the jury that these statements could not amount to corroboration. The word "corroboration" in the first sentence would have been regarded by the jury as a slip of the tongue when the trial judge meant to refer to the complainer's credibility. It was also pointed out that in another passage of the charge at page 27 the trial judge referred in error to the complainer on the first charge instead of the complainer on the second. Again, we are not persuaded that the jury could have been misled, having regard to the context in which that statement was made.

[9] We turn now to the remaining grounds of appeal which relate to the second charge. The circumstances out of which they arise are as follows. The complainer on that charge gave evidence that she returned home in the early hours of the morning after having been out with friends. She saw the appellant, whom she knew, in the street. He asked her if he could go up to her house, but she declined. However, he followed her into the house, accompanied by another man, Gary Sturgeon. She had not invited them into the house, and asked them to leave. The appellant said that he wanted a glass of water and she gave him that. He then grabbed her and pushed her into the bedroom. He had his arm around her and across her chest. She fell back on to the bed and the appellant tried to remove her underwear. He held her down and she was kicking. She fell off the bed and hit her head. She was struggling with the appellant. He undid his trousers and tried to put his penis into her vagina. She was frightened and was screaming and shouting.

[10] Before cross-examining the complainer, counsel for the appellant invited the trial judge, under section 275(1)(c) of the Criminal Procedure (Scotland) Act 1995, to permit him to ask the complainer whether she accepted that she and the appellant had had sexual intercourse with her consent at her house approximately three months previously. Counsel explained to the trial judge that the appellant's position was that nothing of any account had happened between the appellant and the complainer at the time of the alleged incident which was the subject of the charge, and that the only mention of sex was when the appellant had asked the complainer if she wanted to have sex with him. However, it might well seem to the jury to have been a particularly bizarre request in the absence of any background at all. If, on the other hand, there had been a previous occasion when sexual relations took place between them, the request for sex might be seen in a totally different light. He added that a ruling excluding such questioning might even make it difficult for the Crown to cross-examine the appellant, since one of the questions which it might be thought would be asked in cross-examination was why the appellant made that request of the complainer. That was the question which counsel was inviting the trial judge to permit him to put to the complainer.

[11] The Advocate depute opposed the application which had been made by counsel for the appellant. He maintained that the matter which counsel sought to raise did not form part of the subject-matter before the court. This was not a case in which the appellant claimed that there was sexual contact between him and the complainer with her consent. To allow the complainer to be questioned on this matter would merely tend to discredit her. Counsel for the appellant further pointed out that his request was not for the purpose of any general attack on the character of the complainer. The defence position was entirely the opposite. It was that, despite the fact that she had previously had had sexual intercourse with the appellant, on this occasion she said "No" and nothing happened.

[12] The trial judge refused the application. He observed that to allow the complainer to be questioned in regard to the previous alleged sexual intercourse seemed to him to be liable to open up evidence of the very kind which section 274 of the 1995 Act was intended to exclude

"and possibly to open it up over a wide area and although the questioning might have some peripheral bearing on the evidence that the accused person is going to give, it falls short in my view of being necessary in the interests of justice".

[13] The appellant gave evidence in his own defence. In regard to the second charge he said that he and Gary Sturgeon remained in the hall of the complainer's flat. She got a glass of water which Gary drank. He asked her if she wanted to have sex with him and she said "No". That was the end of the matter. No further application was made by counsel for the appellant to be allowed to elicit evidence as to previous sexual intercourse between him and the complainer.

[14] In the course of his cross-examination of the appellant the Advocate depute put to him that he "just all of a sudden asked her for sex". The appellant replied in the affirmative. He also accepted that it was "just like that".

[15] In the grounds of appeal it is maintained that the trial judge erred in refusing the application, which was in the interests of justice. Further, the effect of that refusal was compounded by the conduct of the Advocate depute in his cross-examination of the appellant in drawing attention to the unlikelihood of the appellant simply asking for sex. This conduct was oppressive and an abuse of process. Separatim it was an "act" of the Lord Advocate within the meaning of section 57(2) of the Scotland Act 1958, which was incompatible with the appellant's right to a fair hearing under Article 6(1) of the European Convention of Human Rights. It is also maintained that the matters were of paramount importance since the credibility of the appellant was crucial. However, the combination of the ruling by the trial judge and the conduct of the Advocate depute was unfairly to undermine the credibility of the appellant.

[16] For the appellant Mr Shead submitted that the trial judge's approach to the application was erroneous in a number of respects. The explanation that the appellant had previously had sexual intercourse with the complainer was part of his defence. More importantly, it was a critical part of that defence, since, without the context of the previous sexual intercourse, his request might have seemed to be bizarre. Previous sexual intercourse would have prevented his request from having any sinister quality. It was accordingly wrong for the trial judge to treat this matter as peripheral. Further, the trial judge had misdirected himself in taking the view that the granting of the application would lead to the exploration of a wider area. The application was in regard to a comparatively narrow point. There was no suggestion that it was an attack on the character of the complainer. In any event, it was open to the trial judge to control the scope of any supplementary questions which counsel might seek to ask in following up the initial questioning of the complainer. It was true that an application for permission to question a complainer about her previous sexual contact with an accused happened more frequently where the defence to the charge was that the conduct which was the subject of the charge occurred with the consent of the complainer. However, it was wrong of the trial judge to limit the scope of the defence in the way in which he had done. It was significant to note that the problem which arose during the cross-examination of the appellant had been anticipated by his counsel at the time when he made the application. Counsel for the appellant made the application at the proper stage in the proceedings and for a proper reason. It was true that the appellant might not have given evidence. However, it was part of the responsibility of counsel to act in accordance with his instructions as to the appellant's defence. Having failed to do so at the proper time would have been the subject of adverse comment.

[17] Mr Shead went on to submit that the decision of the trial judge was not to be regarded as simply a matter which was at his discretion (as it had been so regarded in the cases of Bremner v H M Advocate 1992 SCCR 476 and Thomson v H M Advocate 2001 SCCR 162). It was his judgment on a matter of law. If the questioning of the complainer should have been allowed, that was an end of the matter since the point to which the questioning would have been directed was a material matter in the defence of the accused. Mr Shead compared the present type of case with Mackenzie v Jinks 1934 JC 48; Love v H M Advocate 1999 SCCR 783; and Leckie v H M Advocate 2002 SCCR 493. If the court accepted this line of argument it was unnecessary to have recourse to Article 6(1) of the European Convention on Human Rights. As regards Article 6(1), the argument, he said, was that the question should have been allowed if there was a risk that, if it were not allowed, a fair trial of the appellant would be endangered (see R v A [2002] 1 AC 45, per Lord Steyn at paragraphs 45-46).

[18] In reply the Advocate depute did not seek to support the view that the decision of the trial judge should be regarded as a matter for his discretion. He accepted that the question for this court was whether his decision was right or wrong. The Advocate depute also conceded that if the questioning of the complainer had been limited to the single proposition that three months before she had had sexual intercourse with the appellant at her house with her consent, the trial judge would have been wrong to refuse the application. However, he submitted that if she had denied this, counsel would have sought to pursue the detail of what was alleged, and hence widen the scope of enquiry in the way which had caused concern to the trial judge. He had come to the correct conclusion.

[19] In view of the concessions made by the Advocate depute the issue in this appeal comes to be a narrow one. It fell to the trial judge to determine whether, in terms of section 275(1)(c) of the 1995 Act, "it would be contrary to the interests of justice to exclude the questioning ... ". The appellant's defence in regard to the second charge was that nothing at all had happened, although he had asked the complainer for sex. He could not take the sting out of that remark, so to speak, unless he was able to elicit that he and the complainer had previously had sexual intercourse. Accordingly, it was plainly part of his intended defence that those who represented him should seek to bring that matter out and, for that purpose, put it to the complainer in cross-examination. For that purpose the permission of the trial judge was essential. We do not regard this as a purely peripheral matter. It is not surprising that the Advocate depute accepted that if all that required to be put to the complainer was that proposition, the trial judge would have been wrong to refuse the application. Accordingly, the issue between the parties comes to be whether the application was objectionable in respect that it would have led to further questioning of the complainer, including the putting of further detail to her. However, it has to be borne in mind that the trial judge would have been able, in the exercise of the control given to him by virtue of section 275, to limit questioning of the complainer if he considered that it was no longer contrary to the interests of justice to do so. In passing we would not endorse the use by the trial judge of the expression "necessary" in regard to the interests of justice, since that appears to suggest a test which is more strict than the words of section 275(1)(c) justify.

[20] In the result we are of the opinion that the decision of the trial judge related to questioning which was material to the appellant's defence and that it was contrary to the interests of justice to exclude it. In these circumstances we are satisfied that in regard to the second charge there was a miscarriage of justice. We have not required to consider the appellant's submissions as to the implications of Article 6(1) of the European Convention on Human Rights.

[21] Mr Shead went on to submit that since the decision of the trial judge affected the available evidence in regard to the credibility of the appellant, it should be treated as undermining not only his conviction on the second charge but also the conviction on the first. We agree with the Advocate depute that this is too broad an approach, and that it is not justified in the circumstances of the case. The appellant gave evidence as to his defence in regard to the first charge, which was that intercourse took place with the consent of the complainer on that charge. It appears that the jury adopted a discriminating approach to the charges in respect that they declined to convict the appellant of attempting to rape the complainer on the second charge, so indicating that they were not prepared to treat the two incidents as so related that the evidence in regard to the first charge could be treated as providing corroboration in regard to the second. In these circumstances we are not persuaded that the effect of the trial judge's decision was such as to prejudice the appellant in regard to the first charge.

[22] In these circumstances we will allow the appeal to the extent of quashing the appellant's conviction in regard to the second charge.