Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 11

HCA/2014-004606-XC

Lord Eassie

Lady Smith

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD EASSIE

in

APPEAL AGAINST CONVICTION

by

ALAN CLARK

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Allan QC, McKenzie;  Faculty Services Limited

Respondent:  Di Rollo, solicitor advocate, AD;  Crown Agent

29 January 2016

[1]        On 9 September 2014 at a sitting of the High Court of Justiciary in Glasgow the appellant was convicted after trial of a number of charges of violence committed at various times between 1994 and 2008 in a domestic context against four women with whom he had been in successive relationships.  Only two of those partners made any allegation of sexual offending.  They were respectively AMcK and LMcP.  The appellant was convicted of the rape of AMcK between December 2002 and December 2004 (charge 9).  He was also convicted of the rape of LMcP between 10 and 12 September 2008 (charge 22).  The convictions of these two charges of rape depended upon the application of the principle of mutual corroboration of charges ‑ the Moorov doctrine ‑ and accordingly depended upon the evidence of those two complainers being accepted as credible and reliable.  The appeal is directed to the convictions on those charges and also a conviction on a linked charge of assault on the second complainer, LMcP (charge 21).

[2]        The credibility and reliability of the second of those two complainers in particular was a central issue in the trial.  An important element of the defence challenge to the credibility and reliability of the testimony of LMcP was the inconsistency between that testimony and a detailed statement made to police officers some hours after the time at which she alleged that she had been raped by the appellant.  The principal, but not the only, inconsistency between the account given by the complainer in evidence of how she had been mistreated by the appellant ‑ which spanned a relatively short period, namely between 3 September and 12 September 2008 ‑ and the account noted by the police officers on five sheets of closely spaced handwriting was that in the latter, more contemporaneous, account of the various incidents the complainer made no allegation that she had been sexually assaulted.  Additionally, as respects an earlier assault on 3 September 2008 to which she had testified in court, the second complainer had on 4 September 2008 given to her general medical practitioner a wholly inconsistent account of how she came by the injury about which she consulted the doctor.

[3]        The basis of the challenge to the appellant’s conviction on charges 9, 21 and 22 is the directions given by the trial judge respecting evidence of a prior statement by a witness ‑ and in particular those directions as they related to the evidence of prior statements by the second complainer, LMcP.  It was in respect of the evidence of the second complainer that the issue of prior statements made by a witness particularly arose.

[4]        As the advocate depute immediately acknowledged, the directions given by the trial judge were “unusual” (in a case which did not present in this respect any unusual feature).  The relevant passages of the transcript of the trial judge’s charge to the jury begin at page 24 where, in the context of instructing the jury on corroboration, the trial judge duly directs the jury to the effect that hearsay evidence of a statement made by a complainer cannot afford corroboration.  The trial judge then continues:

“With that qualification, however, you can certainly use what a witness says in the immediate aftermath of an incident when you are assessing that witness’s credibility and reliability.  That is to say you can compare and contrast what the witness has said in the witness box, with what the witness said at the time, and if there are coincidences you may think that bolsters the witness’s evidence.  If there are differences of significance you may think that undermines the witness’s evidence.  But it’s all a question of facts and circumstances, ladies and gentlemen, for you to decide.  You decide whether the differences are important or explicable.  There are reasons why people do do different things at different times, of course they are, there are, and you have to decide what is important and what is not.”

[5]        Although not the principal point advanced on behalf of the appellant, we consider that counsel for the appellant was correct in stating that this instruction to the jury did not constitute an entirely correct statement of the law.  While a witness may be cross‑examined as to credit in respect of a prior inconsistent statement, we do not consider that it is admissible to lead evidence of a prior extra judicial consistent statement or statements in order to bolster the witness’ evidence.  Exceptions to that rule of the law of evidence are, no doubt, to be found in the case of a de recenti statement to the first natural confidant or in a consistent utterance forming part of the res gestae;  but none of the hearsay statements in issue in the case were of that nature.

[6]        The passage from the trial judge’s charge which we have just quoted is immediately followed by these directions:

“This of course will loom large when you come to consider the evidence of [LMcP] relative to the statement, which you have heard some of, noted by the CID on the 12^th September.  Bear this in mind, ladies and gentlemen.  [Counsel for the accused] has pointed out some important matters, which he says you should consider, and of course I’m sure you will consider them and I’ll return to this tomorrow morning when I’m dealing with that particular aspect.  But one thing that is worth saying at this stage, what you’re dealing with when you’re dealing with a statement of that nature … and you’ve seen it, it’s not a transcript of what the witness said … it’s not a transcript in the sense of being a question and answer.  You can [sic – presumably ‘cannot’] see precisely what the witness said … sorry, what the police asked and what the witness said, what the, what the, what words came directly from the witness, what words were part of a question from the police, and matters of that sort.  This is a prose narrative of what the police officer understands the witness to be saying.  We’re talking about a document of some five pages long, I think, of handwriting by the police officer, and that type of statement has its limitations.  It’s not a statement which is given on oath, for example.  It’s not one that’s cross-examined in court.  It’s a document which is primarily for use in the course of the police investigation.

On the other hand, it is signed and although the document doesn’t state it as it should have done, the police officers has given evidence which was not contradicted, that it was read over to the witness and signed on each page.  So there are important matters in that, but I should draw your attention to the limitations of that form of relatively short, in comparison to court testimony, statement in the police officer’s handwriting.”

[7]        As counsel for the appellant pointed out, in the case of a mixed statement by an accused ‑ such as the terms of an interview by the police of an accused person which contains both incriminatory and exculpatory material ‑ the jury should normally be directed that what was said by the accused about factual matters is available as evidence of those facts stated in it. Given that particular function of a mixed statement by an accused it may well be appropriate to caution the jury that what was said by the accused in that statement was not on oath and was not subject to forensic cross‑examination and thus ‑ as evidence of the facts stated ‑ is subject to those possible limitations.  However the statement of the second complainer LMcP was not such a statement.  Its status, and the function for which it could properly be deployed in the trial, was that of a prior hearsay account by the witness inconsistent in material respects with the witness’ testimony on oath.  The content of the prior statement which is inconsistent with the subsequent testimony cannot substitute for that testimony.  Evidence of the making by a witness of a prior inconsistent statement will almost invariably be evidence of a statement not made on oath and not subject to any cross‑examination.  But in our view neither of those features is relevant to, or represents a limitation on, the forensic value of a prior inconsistent statement as a means of questioning the credibility or reliability of the witness’ testimony.  While the advocate depute offered the submission that what the trial judge said about the witness’ prior statement being neither on oath nor subject to cross examination was factually accurate, in our view that is really not to the point.

[8]        Similarly, as counsel for the appellant also pointed out, a prior inconsistent statement will commonly not be found in any transcript of an audio recording, or in any shorthand or longhand note of question and answer.  Counsel for the appellant further criticised the trial judge’s description of the statement noted by the police officer as being a “prose narrative”.  It was not clear what the trial judge intended by that expression but it suggested that the trial judge considered the statement to have been filtered through the mind of the police officer and hence to bring with it a lack of reliability, such as that associated with a precognition and which makes a precognition inadmissible in evidence.  On the other hand, said counsel, the evidence disclosed that the statement noted by the police officer had been read over to LMcP and had been signed by her.  In Beurskins v HMA [2014] HCJAC 99; 2015 JC 91 the trial judge had held at paragraph [29] of his opinion that the signature by the witness would render the document a statement by the witness and not a precognition:

“The document ceases to be solely a filtered note of what the statement taker thinks the witness might say (a precognition) and becomes a version of events specifically acknowledged as being emitted by the signatory (a statement)”.

There was thus an inherent contradiction in the instructions being given to the jury.

[9]        We have come to the view that there is force in these criticisms.  It is no doubt correct, as the advocate depute submitted, that what the trial judge said to the jury is factually correct.  The account was not a transcript of an audio or other recording of question and answer; and it was in prose.  But that does not thereby render the directions appropriate or suitable when what was required were normal directions on hearsay evidence of a prior inconsistent statement by a witness.  It may be added that the advocate depute had some difficulty in discerning what the jury was intended to understand by the reference to a prose narrative; but we did not understand her to dispute that it might well convey to the jury the notion of an inaccurate rendering of what had been said by the witness to the police officer.

[10]      Put shortly, the essence of the complaint advanced by counsel on behalf of the appellant was that , in stressing to the jury that the prior statement by LMcP was not on oath, was not subject to cross‑examination, was not a transcript of an audio recording, and was therefore subject to limitations, the trial judge’s directions to the jury introduced matters which were not properly pertinent to the exercise which the jury had to perform and deflected the jury from a proper consideration of the assessment of the reliability and credibility of the complainer’s testimony in light of her prior inconsistent position.  In particular, the trial judge’s treatment of the statement was likely to impress upon the jury the notion that the statement noted by the police officer was not reliably noted or was incompletely noted and therefore that they should discount its significance when assessing the credibility and reliability of the testimony of LMcP on the central issue of her treatment at the hands of the appellant including the allegation that there had been sexual offending, including the commission of an act of rape.  Moreover, the trial judge’s categorisation of the statement of what the complainer had said as a prose narrative was to describe it in terms again likely to suggest inaccuracy or unreliability.  Both the complainer and the police officer in question had given evidence of the manner in which the interview had been conducted and that evidence was for the jury to consider.  It was for the jury to consider whether the account given to the police had been incompletely or inaccurately noted.  The complainer, LMcP, did not dispute that the statement had been read over to her and that she had signed it; and she did not maintain that the language used was not words spoken by her.  We have come to the view that there is substance in these criticisms advanced by counsel for the appellant and that his submission that, collectively, they constitute a material misdirection of the jury is well founded. 

[11]      Accepting that the jury were not given conventional directions on a prior inconsistent statement by a witness, the advocate depute advanced the submission that, in the event, the unusual directions given in the present case had yet not resulted in any miscarriage of justice.  The point advanced by the defence at the trial was, she submitted, that the complainer’s position in court was inconsistent with what the complainer had said to the police, to whom she had made no complaint of rape.  It was not in dispute that the statement noted by the police did not contain any suggestion of rape.  Accordingly, submitted the advocate depute, since it was thus accepted by the complainer that she had not made an allegation of rape to the police, the point would have been evident to the jury.  Thus the actual terms of the statement or the manner in which it had been noted or compiled did not matter.

[12]      While the advocate depute ‘s contention that, despite the terms of the trial judge’s directions which we have so far quoted, no miscarriage of justice could be said to have occurred has an initial attraction, we are ultimately not persuaded.

[13]      As he had foreshadowed in the directions respecting prior statements already quoted, in which the trial judge said that the matter would loom large when the jury came to consider the evidence of the complainer LMcP, the trial judge came later to attend to the matter more specifically in relation to that complainer.  He said this:

“Moving on to charge 22, there is the, there is in this, on this charge of course there is a report made at the time of what happened in the form of a statement to the police.  But strikingly, say the defence and as indeed is not disputed, it contains no allegation of rape or indeed certain other aspects, which have now been spoken to and are in the indictment, such as the visit to the cashline or the dangling dog.  There is an account of a distressing event, and of course you have the physical state of [LMcP] as she presented at the care home.  But there are inconsistencies of time and chronology contained in the statement, and you’ve seen these focused in cross‑examination and in the defence speech to you.  Once more you’ve got [LMcP’s] explanation of why that is so and you must consider again whether her explanation is one which is satisfactory”.

It is to be noted that the trial judge did not put matters to the jury on the basis that there was a clear acceptance by the complainer, LMcP, that in her contemporaneous complaint to the police she had not suggested to the police that she had been raped and so the precise terms of the statement did not really matter.  The focus is rather on the report ‑ the statement to the police ‑ which inevitably must draw the jury back to the directions given by the trial judge earlier in his charge about the statement and his directions on the limitations on the value of the statement.  It is also to be noted that that which the jury was invited to consider are “inconsistencies of time and chronology” and whether the complainer’s explanations for those inconsistencies were satisfactory. The fundamental point ‑ central to the defence position ‑ of the inconsistency of the prior account with the complainer’s testimony by reason of the absence of any allegation of any sexual activity, including rape, and its effect on the jury’s assessment of the credibility and reliability of that testimony is thus elided.

[14]      We would add that, while of course it is correct that the statement does not make any suggestion of rape,  in her cross‑examination the complainer did suggest that, as a prelude to an account not pursued, she had mentioned to the police that there had been some sexual activity and that the police had missed things out[1].  When the police officer who noted the statement gave evidence, that particular point arising from the evidence of LMcP was taken up with the officer.  She testified to the effect that if that sexual activity had been mentioned by the complainer in the course of the interview it would have been noted in the statement.  Accordingly the matter was not as clear cut as the advocate depute sought to submit to us.

[15]      In these circumstances we have come to the conclusion that the jury were misdirected on a matter which was central to the position of the defence at trial and that we are unable to say that no miscarriage of justice may have occurred.

[16]      We shall therefore allow the appeal against conviction on charges 9, 21 and 22.  We require to hear counsel further on the matter of sentence in light of that decision.