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Cite as: [2004] ScotHC 41

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MacKay v. Her Majesty's Advocate [2004] ScotHC 41 (23 June 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Macfadyen

Lady Cosgrove

Appeal No: XC383/04

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

APPEAL

under section 74 of the Criminal Procedure (Scotland) Act 1995

ALISDAIR MACKAY

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: C. Shead; McCourts

Respondent: S. Di Rollo, Q.C., A.D.; Crown Agent

23 June 2004

[1] The appellant has appealed against the refusal at a preliminary diet of an application under section 275 (1) of the Criminal Procedure (Scotland) Act 1995.

[2] The matter arises as follows. The appellant has been indicted on three charges of lewd, indecent and libidinous practices and behaviour, and six charges of assault, one of which alleges an attempt to defeat the ends of justice. There are two complainers, one of whom is a boy who was aged between three and six years during the periods of time covered by the five charges relating to him.

[3] According to the terms of the application the appellant sought to have admitted or elicited evidence showing or tending to show that the boy is well-known to certain class teachers and a head teacher, all of whom are named. The headteacher has 37 years of experience in teaching children. It is said that she found that the boy was almost invariably determined to relate events in a manner that showed him in the best light, and that he would tell lies to achieve this. The boy had this tendency to an unusual degree. He did not tell the whole story. The class teachers found that he made up stories to an unusual degree, told elaborate lies and could not be relied upon to tell the truth.

[4] Ms McMenamin, who appeared for the appellant, indicated that the evidence which was sought to be admitted or elicited was covered by subsection (1) (c) (ii) and (d) of section 274 of the 1995 Act. However, the application was justified by reference to subsection (1)(a)(i) and (ii) of section 275.

[5] Counsel explained that it was understood that, while the latest period covered by the charges ended in December 1999, the boy did not disclose his complaints until three years later. He was not interviewed until January 2003. In connection with an application to the court for the evidence of the boy and the other complainer to be taken by means of a live television link it emerged that the head teacher had written letters to the procurator fiscal in which she had made a number of unprompted comments about the boy's credibility and reliability. This led to the defence recovering records relating to his education, including a school referral form, with the date 24 October 2000, in which reference was made to him having a vivid imagination and having told elaborate lies. He had been transferred to his current school in January 2003 as a result of there being problems about his behaviour at his previous school. The boy had been referred to an educational psychologist on a number of occasions in connection with his problems with relating to others.

Precognitions had been taken from the headteacher and from his class teachers at his former and current schools, who had thirteen and seven years teaching experience respectively.

[6] Counsel submitted that the evidence which these witnesses would give was both relevant and admissible. Furthermore it was essential to the appellant's defence. In this case the prosecution was dependent on the application of the Moorov doctrine for corroboration of the charges. Since there were only two complainers this represented its application in the narrowest form. There was no independent medical or forensic evidence. There was no evidence that the boy had shown distress at any time. His parents could provide little information. It was not suggested that at any time the appellant had admitted his guilt. Accordingly the case against him depended on the credibility and reliability of the boy and the other complainer, who would be giving evidence by live television link. In the circumstances it would not be in accordance with justice if the appellant were denied the opportunity to put this evidence before the jury for their assistance.

[7] The application in the present case is not concerned with the credibility or reliability of a piece or a body of evidence which is relied on by the prosecution in support of its case. It is obviously open to the defence to adduce eyewitness or circumstantial evidence which contradicts, undermines or casts doubt on such evidence. By extension there are situations in which expert evidence may be adduced for the same purpose. Thus the evidence of a handwriting expert may be used to challenge the evidence of a witness as to the identity of the person by whom a document has been written. A further example is provided by Campbell v H M Advocate 2004 SCCR 220, in which the court held that expert evidence was admissible on the scientific question of the ability of persons to recall a specific statement verbatim and in identical terms.

[8] Expert evidence may be given, by a suitably qualified person and by reference to a recognised body of expert knowledge, as to the existence in a witness of a medical, psychiatric or psychological condition which could account for the witness giving an untrue account (McBrearty v HM Advocate 13 April 2004, the Lord Justice Clerk at paragraph 49). No doubt at least one reason why such evidence is admissible is that it relates to matters which a jury do not have the opportunity to investigate or the expertise to diagnose.

[9] In the present case, on the other hand, it is proposed that the teachers to whom we have referred should give evidence as to whether the boy is a person who could be relied upon to tell the truth. That is different in kind from evidence as to the existence of an underlying condition such as we have mentioned above. Ms McMenamin was not able to provide the court with any authority in the law of Scotland in support of the admissibility of evidence of the type which is envisaged by the application. We do not overlook the fact that it is competent to put to a witness that he has been convicted of an offence which may have a bearing on his honesty as a witness. However, that involves no more than reliance on an objective and immediately verifiable fact, as opposed to a general enquiry into the whether the witness is credible or reliable. Ms McMenamin pointed out that in Green v HM Advocate 1983 SCCR 42, where convictions for rape were quashed, the appeal court relied on evidence that the complainer had an inordinate interest in sex and was prone to making unwarranted accusations of rape and sexual interference. However, it is to be noted that in that case the fresh evidence included that of a consultant psychiatrist who had examined the complainer, and that the other evidence related to the same type of subject matter as the charge. We do not find that case to be of assistance.

[10] We do not, however, require to go further into this subject since it is clear that this application does not satisfy the terms of section 275. It provides in subsection (1) that the court may admit such evidence or allow such questioning as is referred to in section 274(1) if satisfied that -

"(a) the evidence or questioning will relate only to a specific occurrence

or occurrences of sexual or other behaviour or to specific facts demonstrating -

(i) the complainer's character; or

(ii) any condition or predisposition to which the complainer is or has been subject;".

The present application is plainly not concerned with specific occurrences or specific facts, but with general evidence as to the complainer's credibility and reliability.

[11] In any event subsection (1)(b) states that the court has to be satisfied that

"that occurrence or those occurrences of behaviour or facts are relevant to establishing whether the accused is guilty of the offence with which he is charged".

We do not consider that this is met in the present case since the evidence which is sought to be admitted does not relate to the credibility or reliability of the complainer in regard to matters of the type with which the appellant is charged.

[12] In these circumstances we consider that application was not well founded. The appeal will be refused.