Scottish High Court of Justiciary Decisons

Appellant: Jackson, Q.C., C.M. Mitchell; McClure Collins

Respondent: Prentice, Q.C., A.D.; Crown Agent

9 September 2009

Introduction
[1] On 16 August 2007, after trial in the High Court at Glasgow, the appellant was convicted of the rape on 18 June 2006 at Knightswood Park, Glasgow of LK ("the complainer"). He was sentenced to five years' imprisonment. He has appealed against his conviction on the basis that the trial judge misdirected the jury by telling them that they could have regard to a de recenti statement made by the complainer regarding the rape, which statement was spoken to in evidence by one of her friends, CC, but which the complainer herself denied making.

[2] This appeal originally called before a bench of three judges, who, on 12 November 2008, having heard submissions from both parties, remitted the case to a bench of five judges given the general importance of the issue in dispute (Ahmed v HM Advocate [2008] HCJAC 64).

Antecedents and background to the offence
[3] At the time of the offence the complainer, who was aged 15 years and 10 months, and CC, who was aged 14 years, were both pupils at a residential school, from which they absconded on 17 June 2006. They caught a train to Glasgow city centre, where they met the appellant (then aged 33) and his friend who were both previously unknown to them and who offered to buy them some drink. The group entered the appellant's car. The complainer allowed the appellant to put his arm around her and kiss her, she having told him that she was 18 years of age. The appellant eventually drove the group to a public park in the west end of Glasgow, arriving there in the early hours of 18 June 2006. There was some dispute in the evidence about what was discussed in the car prior to the group entering the park. The appellant's position in his police interview was that the complainer agreed to have sex with him in return for £10. CC initially denied this claim, but in cross-examination accepted that such a conversation had taken place. The complainer admitted that the appellant had given her £10 after the rape, but denied that there had been any prior discussion in that regard.

Evidence of rape and of the de recenti statement
[4] The complainer gave evidence that once in the park she had gone to an area secluded by trees and bushes in order to urinate and that the appellant had come up to her, grabbed her arms, pulled her to the ground, put his hand over her mouth, lain on top of her and raped her. She claimed that she struggled with the appellant, tried to push him away and told him to get off. The Crown relied on CC's evidence as corroboration, although there were some inconsistencies both within her evidence and when it was compared with the account given by the complainer. She spoke, inter alia, to having seen, from a distance, two figures together, which she took to be the appellant and the complainer, and to hearing the complainer scream and say "Get off me". When interviewed by police officers, the appellant, despite an initial denial, admitted having had sexual intercourse with the complainer but claimed that this was consensual. He lodged a special defence to that effect, but did not give evidence at his trial.

[5] After the incident the group returned to the car and the appellant drove back into the centre of Glasgow. The complainer gave evidence that, due to embarrassment, and the fact that she would not normally confide in her, she did not tell CC about the rape, although at one point in her evidence she said that she "never told her exactly what happened". CC gave evidence that, when the complainer returned, she "looked a state": she was shaking, her hair was a mess and she was crying. Unprompted, and without objection, she also spoke to the complainer informing her of the rape, claiming initially that this was after the appellant and his friend had gone back to the car and while she and the complainer were walking back into town. When her police statement was put to her, she accepted that she and the complainer had in fact returned to the appellant's car and that he had then driven them back into the centre of Glasgow. She later suggested that it may have been when they were back in the city centre that the complainer mentioned the rape. Both the complainer and CC described taking a bus to the outskirts of Glasgow, before going to the transport police and informing officers that they had absconded from school, to which they were returned. The complainer did not officially report the rape until she was questioned by members of staff who had been alerted to what happened by CC.

Submissions by the Advocate depute at trial and directions by the trial judge on the de recenti statement

[6] In his speech to the jury, the Advocate depute raised the issue of the de recenti statement, saying:

"And [CC's] evidence didn't finish there. She told you that something had changed when [the complainer] came back. [The complainer] was different. [CC] knew something was wrong, she said. She described [the complainer] as being, she said at some, at various points she was upset, she was quiet. At one point she said she was crying and she appeared in shock. In fact I think at one point, although it may have been (inaudible) at one time, she said that she had freaked out. And before they even got back, and this is important, before they'd even got back into the car, so it's almost immediately I would submit to you after the incident in the park, she told [CC] that Shaban had raped her.

Now is that the way someone would react if they'd just had consensual sex? Of course not. But it might be the way you'd expect them to react if they'd just been raped as [the complainer] described".

The trial judge gave the jury the following directions regarding the de recenti statement:

"Now, I've given you, as I said, a general rule which is that hearsay cannot be [had] regard to [by a] jury. I have identified one relevant exception. There is, perhaps, another exception which I should draw your attention to. ... It may be you come to the view that very ... very shortly after the events which, whatever it was that occurred in the park, near the trees, [the complainer] said to [CC] something along the lines of her having been raped. Well you can have regard to that as something that the alleged victim has said very shortly after the incident in question and as I say normally that would be inadmissible as hearsay, but in a case like this, because it is a very recent statement, it is admissible, but only for a limited purpose and the limited purpose is whether, or as a tool as it were, to help you decide whether or not [the complainer] was telling the truth when she came later to give evidence in, in the witness box. It is not, I have to express this, it is not corroboration ...".

[7] He also gave the standard directions that it was the jury's recollection of the evidence which mattered and that the weight to be given to the evidence and decisions about accepting or rejecting evidence were matters for them. In addition, given the age of the complainer and of the appellant at the time of the offence, he directed the jury that, by virtue of the Criminal Law (Consolidation) (Scotland) Act 1995, section 14, if they did not intend to convict the appellant of rape, they had to consider the statutory alternative of unlawful sexual intercourse with a girl under 16 years of age.

Submissions by parties
[8] Mr Jackson, on behalf of the appellant, submitted that, as a matter of logic and legal principle, a de recenti statement could not be relied on to bolster credibility where, as here, the complainer clearly denied making it (MacDonald v HM Advocate 2004 S.C.C.R. 100, per Lord MacLean at paras [9]-[10] cf. White v R [1999] 1 CrAppR 153, per Lord Hoffmann at page 157). Muldoon v Herron 1970 JC 30 was not authority for the contrary proposition: essential to the court's decision in that case was the witness's acceptance that she had made a statement identifying a suspect. The situation might be different where a witness could not recall having given a statement, although no concession was made in that regard. Any further erosion of the rule against hearsay should be firmly guarded against. That was seen in the statutory exceptions to that rule in the Criminal Procedure (Scotland) Act 1995 where the admission of prior statements was subject to strict conditions (sections 259 and 260; cf. Jamieson v HM Advocate (No.2) 1994 J.C. 251). Section 263 permitted a prior inconsistent statement to be put to a witness, but only to undermine her credibility; no comparison could be drawn with the circumstances of the present case. The only purpose of the de recenti exception was to permit proof that the injured party had been consistent in her account and thus to bolster her credibility: it was not primary evidence (Morton v HM Advocate 1938 J.C. 50, per Lord Justice Clerk Aitchison at page 53; Walker and Walker, The Law of Evidence in Scotland (3^rd ed), para 8.3.1; Stair Memorial Encyclopaedia, Vol. 10, para 707). By dealing with the issue in combination with the complainer's distress the Advocate depute had failed to pay due regard to that distinction. The jury should have been told to ignore the de recenti statement. As the complainer's evidence was crucial, one could not say that the misdirection had not had a significant effect on the jury's decision (cf. White v R at page 162). The conviction of the appellant should be quashed and the statutory alternative substituted.

[9] The Advocate depute, citing authority from other jurisdictions, submitted that there was no reason why the complainer had to give evidence of a de recenti statement where it could otherwise be proved (cf. Lillyman v R [1896] 2 QB 167; Timm v The Queen [1981] 2 S.C.R. 315; R v Nazif [1987] 2 NZLR 122). It was a question of fact, the jury being entitled to accept the complainer's evidence overall but to reject any denial of having made any de recenti statement (Muldoon v Herron, per Lord Justice Clerk Grant at page 35 and Lord Walker at page 42; cf. Jamieson v HM Advocate (No.2). Such a statement differed from the normal exceptions to the rule against hearsay: it was a matter of weight, often bound up with the complainer's condition and appearance at the time of making it. Reference was also made to Burnett, Criminal Law of Scotland at pages 553-4. Evidence ought to be permitted if, for example, a complainer could not recall making a statement recorded on film when she was distressed or intoxicated; it would be difficult to formulate a rule which permitted such evidence but excluded it where the statement was denied. The general principle which one derived from the authorities was that a proper foundation ought to be laid before the de recenti statement of the complainer was led in evidence (cf. Dickson, Evidence (3^rd ed) page 195, para 261; Hugh McHardie, 1834 Bell's Notes, page 288). However, in her precognition and police statement CC had not mentioned it: the Crown could not put it to the complainer or lead evidence in that regard (cf. section 263(4) of the 1995 Act). Rather than objecting to the evidence or recalling the complainer, the appellant's solicitor-advocate used the inconsistency to undermine her credibility. The statement was thus evidence in causa and appropriate directions were required and given. The cases relied on by the appellant could be distinguished. In White v R only the complainer spoke to the statement, no independent evidence being led: in that light, the passage relied on was obiter. In MacDonald v HM Advocate there had been an objection to the statement. Moreover, the jury had been directed that they could take account of it in support of the complainer's identification evidence. If that case did suggest that the complainer herself had to give evidence of the statement, it cited no supporting authority and should be overruled. Esto there had been a misdirection in the present case, the de recenti statement would not have had a significant impact on the jury's assessment of credibility and reliability. The complainer had otherwise been consistent in her account from only twelve hours after the rape, confirming what had happened to staff at the school. There had been no miscarriage of justice.

Discussion

[10] In Burnett, Criminal Law of Scotland (1811) at pages 553-4 it is stated of the evidence of a complainer of rape:

"... our ancient law required in every case, that the woman should not delay making her complaint (not ultra unam noctem), and also that she should appear for that purpose before the nearest magistrate. Though this strictness have for a long time been departed from, and the want of it be not pleadable in bar of trial, the recency and manner of her complaining is still a circumstance of weight as a matter of evidence."

[11] It is thus clear that the fact that the complainer has, recently after the event, spoken of the alleged attack upon her and the manner in which she has so spoken of it are, and have long been, of evidential significance. In the more common situation, where the complainer herself testifies in court, the terms of her utterance, unless part of the res gestae, are not a separate source of evidence of the attack complained of; they go only to the credibility of the complainer's account (Morton v HM Advocate, at page 53). The same is true in the less common situation where the complainer does not give oral evidence but her testimony about the attack complained of is available in some other form - say, by a statement admitted under section 259 of the Criminal Procedure (Scotland) Act 1995. As the de recenti statement goes only to the credibility of the complainer, whatever form her testimony takes, evidence that she gave such a statement can have no value, and is thus inadmissible, if the complainer does not herself testify in some form to the matter complained of (see R v Wallwork (1958) 42 Cr.App.R. 153, per Goddard LCJ at pages 161-2).

[12] Where it is admissible, its true value lies in the evidence of the recipient of the statement that it was made to him or to her. Testimony by the complainer that she complained to another or others is of no value unless that other or those others speak to hearing the complaint from her (R v Kincaid [1990] 2 NZLR 1, per Casey J at page 9; White v R, per Lord Hoffmann at page 157). The significance of the evidence of the recipient is that his or her testimony that the statement was made - and made recently after the event - supports, as a matter of credibility, the testimony of the complainer about the matter complained of.

[13] Once that is recognised, there is no logical requirement that the complainer herself should testify as to having made the complaint to which the recipient speaks. There may be very good reasons why she is unable to do so. The trauma of her experience may be such that, while she is able to speak to the assault, she is unable to recall what she may have said to others about it shortly after the event. It has been recognised in other jurisdictions that it is not essential that the complainer speak to having made the complaint (R v Lillyman, per Hawkes J at pages 169-70, as interpreted and applied by Somers J in R v Nazif at pages 125-6; see also Timm v The Queen, per Lamer J at page 333 and page 337 and R v Kincaid, per Casey J at page 9).

[14] Mr Jackson relied for authority principally on two cases. First, in White v R the Privy Council dealt with a case in which at trial the complainant had spoken to having complained to five persons of having been sexually attacked by the accused; but none of these persons was called as a witness. Mr Jackson focused upon the following words at page 157, used by Lord Hoffmann in delivering the advice of the Board:

"If a complaint is made at the first reasonable opportunity after the offence, it may be proved in evidence to show the complainant's consistency and to negative consent. But for this purpose it is necessary not only that the complainant should testify to the making of the complaint but also that its terms should be proved by the person to whom it was made."

If the second sentence is taken at face value and in isolation it suggests that there is a dual requirement, including that the complainant should testify to the making of the complaint. But this passage must be read in the wider context of the matter being discussed on that page. It had been submitted for the appellant that the evidence of the complainant of having made the five complaints was inadmissible, as being excluded by the rule against proof of prior self-consistent statements. His Lordship then explained that there were two well-known common law exceptions to that rule, the first of these being that which permits proof of complaints in sexual cases. It was in that context (namely, where a complainant had given evidence of a prior complaint or complaints) that the quoted passage appears. It cannot be taken to be an authoritative statement that evidence by a complainant or complainer of having made a recent complaint is a pre-condition to the admissibility of evidence of the recipient having heard it. It may also be noted that on the same page Lord Hoffmann quotes a passage from Casey J's judgment in R v Kincaid at page 9; on that same page Casey J had said, under reference to R v Nazif, that "[it] is not even necessary for [the complainant] to give evidence that she did so complain". Lord Hoffmann does not suggest that that view is ill-founded.

[15] The other case relied on by Mr Jackson was MacDonald v HM Advocate. The appellant in that case had been convicted of having, decades earlier, conducted himself in a shamelessly indecent manner towards two girls then resident in a children's home. The second ground of appeal was that the sheriff had wrongly rejected an objection to the admissibility of evidence from another witness, K, that she and another child had been told by the complainer that the appellant had done something to her. The complainer in evidence had testified that she could not remember telling anybody about what had happened to her until she spoke to a therapist some 26 or 27 years after the event. According to the ground of appeal neither the statement alleged to have been made de recenti to the other children nor the circumstances of the making of it or whether it was made at all was put to the complainer by the Crown or anyone else for her comment. At paragraph [8] the court sets out part of the sheriff's charge to the jury and continues:

"[9] From that passage it will be seen that the sheriff has included the de recenti statement in his consideration of the evidence relating to identification. As is well known, evidence from a witness that a complainer in a sexual assault or sexual indecency has made a statement, usually to a confidant, reasonably shortly after the assault or indecency was committed, may be admitted in evidence as an exception to the rule of hearsay evidence, in order to show that what the complainer then said is consistent with the evidence which she has given on oath in court. If it is, the jury may accept her as a credible and reliable witness in these matters about which she complained. But there must be evidence of an original complaint to which the supporting witness can speak. In this case the complainer NW could not remember making any complaint until she spoke to her speech therapist 26 or 27 years afterwards. Not only did she not remember making any complaint to anyone at the home, but also she did not recognise [K] as having been a child at the home at the time. Indeed, the complainer thought she had first made the complaint to her speech therapist.

[10] Defence counsel objected at the trial to evidence being led from [K] about a de recenti statement made by the complainer. We consider that that objection should have been upheld by the sheriff because there was no evidence from the complainer that such a statement had in fact been made or, if it had been made, what its terms were. It follows that in his charge the sheriff misdirected the jury on this matter in the passage to which we referred above."

[16] It accordingly appears that in that case the Crown did not examine the complainer as to whether or not she did say, or may have said, something de recenti to her fellow residents, with a view to her testifying, if it was the case, that she had no recollection of doing so; or her even denying that she had done so. We discuss below the propriety of doing so. However, so far as the court opines at paragraphs [9] and [10] that the objection should have been sustained because there was no evidence from the complainer that such a statement had in fact been made, or if it had, what its terms were, we are unable to agree with that opinion. No authority is cited in support of it. The court does not appear to have been favoured with citation of the authorities from other jurisdictions which were placed before us and to which we have referred. We see no logic in excluding as inadmissible the evidence of the recipient of a de recenti statement merely because the alleged maker has not spoken to it. It is the fact that the statement was made which is evidentially significant. The recipient is as well able to speak to that as the maker and, as we have noted above, it is the recipient's testimony which is potentially material.

[17] Nonetheless, it is appropriate, at least where it is known that a recipient is expected to speak to the making to him or her by the complainer of a statement de recenti, that the complainer should be examined on the matter. In Dickson, Evidence para 261, to which the Advocate depute drew our attention, it is stated:

"In general, the prisoner will not be allowed to prove the contradictory statement, without laying a foundation for it by examining the injured party. The same principle applies a fortiori to the attempt of the Crown to support that witness' testimony by proving de recenti statements."

In support of the first of these sentences the learned author cites McHardie; he refers also to Robertson (1842) 1 Broun 152. In the former case an objection was sustained to a question to a witness designed to elicit that the complainer in a rape case had said something importing that she was willing to give up the charge, neither the complainer nor her mother, who were earlier witnesses, having been asked about this. In the later case an objection was similarly sustained, where it was proposed to ask a witness whether an earlier witness had used certain language in the course of the events (mobbing and rioting), the matter not having been put to the earlier witness. It can readily be seen that in each of these cases it was unfair to the earlier witness to adduce evidence of utterances from the person who allegedly made them without that person having been given an opportunity of commenting on the suggestion. No authority is cited for the second sentence quoted from Dickson. In so far as it suggests that the proper course, in general, is to examine the complainer as to whether or not she made any de recenti statement, we are prepared to accept it as a sound statement of the law - though whether in modern practice a failure to put the statement would be a ground for excluding the later testimony or merely a basis for adverse comment upon it is a moot point, which it is unnecessary for the purposes of this case to decide. The passage as a whole, and the authorities cited there, do not in our view, support the proposition that it is essential to the use of a de recenti statement that the complainer should herself testify that she made the statement. In so far as the decision in MacDonald proceeded on the view that there must be "an original statement" (by the complainer) "to which the supporting witness can speak", we disapprove of it.

[18] Mr Jackson emphasised that the present was not a case in which the complainer had testified that she had no recollection of making any statement to CC but in which she had positively denied that she had done so. He suggested that there was an illogicality in receiving the recipient's evidence of such a statement when the complainer, to whose credibility only the statement was relevant, had herself denied making it. But we see no lack of logic in that course. The primary issue is the credibility and reliability of the complainer's evidence of the attack which she claims was made on her. The circumstance that she gives, in relation to the making or otherwise of a de recenti statement, evidence which conflicts with that of another witness may be a factor which goes to her credibility on that or on other matters, including her testimony of having been attacked and the circumstances of that attack; but a denial that she made the statement may, just as testimony that she has no recollection of so doing, be for one or more of a number of reasons which are wholly consistent with the truth and accuracy of her testimony about the attack.

[19] In this case the complainer was at the trial examined by the Advocate depute as to whether she had made any statement to her companion CC about what had happened to her in the park. That examination was directed to the time when they went back together to the car and later when they were at a hotel in the centre of Glasgow. She was also examined as to whether she had said anything to the police to whom she and CC had "surrendered" themselves later that night. Although at one point in her evidence the complainer appeared to suggest that she had initially said something to CC ("I says I ... I didnae say, ken, exactly"), the general import of her evidence was that she had not, prior to her return to the home, suggested to anybody that she had been raped. She put such non-disclosure down to embarrassment on her part. On the other hand, CC gave, without objection, emphatic evidence that the complainer had told her that she had been raped - although it is not clear from her evidence whether this was immediately after the appellant and his companion had left, having taken the girls by car back into town, or at an earlier point in the vicinity of the park. The issue as to whether a de recenti statement had or had not been made was thus fully before the jury and it was for them to decide which, if either, version of events to accept. If they believed the complainer on this matter, there was no accepted evidence of a de recenti statement to support the credibility of her testimony that she had been raped - although the jury were also entitled to take into account the complainer's explanation for not making such a statement. If they believed CC, they could, in our view, use her testimony as supportive of the credibility of the complainer's testimony that she had been raped - though the conflict between the complainer and CC on the making of the statement was a matter for comment to the jury.

[20] In his speech to the jury the Advocate depute made reference to CC's evidence that the complainer had made a statement to her. He did so in a context in which the jury, unless appropriately directed, might have thought that CC's evidence about its having been made was evidence of the truth of its contents, which clearly it was not. In these circumstances the trial judge very properly directed the jury that they could use the de recenti statement, if they accepted that it had been made, only for the limited purpose of deciding whether the complainer was telling the truth about what had happened to her and not as corroboration of the complainer's testimony.

[21] We should add that Mr Jackson laid emphasis on the limited circumstances in which Parliament had authorised the use of hearsay evidence in criminal trials. Reference was made to sections 259, 260 and 263 of the Criminal Procedure (Scotland) Act 1995. These provisions do not, however, constitute an exhaustive code of the circumstances in which evidence of extrajudicial statements may be admitted: such statements may still be admitted at common law in some circumstances (see Jamieson v HM Advocate (No.2) and Muldoon v Herron), as well as may de recenti statements for the well-established limited purpose to which we have referred. The statutory provisions extend the circumstances in which hearsay may be admitted and in some cases admit, subject to restrictions, secondary hearsay, that is, they admit the statement as evidence of the matter contained in it (section 259(1), section 260(1)). Evidence of the making of a de recenti statement is on the other hand primary hearsay, that is, it is the fact that a statement in particular terms was made which is of evidential significance. While recognising that Parliament has been cautious in defining the circumstances in which under statute hearsay may be admitted in criminal trials, we do not find these statutory references of assistance in the determination of the issue arising in this appeal.

[22] In the whole circumstances we are not persuaded that the trial judge misdirected the jury. This appeal must accordingly be refused.