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APPEAL BY ANDREW GERALD LINGARD AGAINST HMA [2023] ScotHC HCJAC_42 (03 August 2022)
URL: http://www.bailii.org/scot/cases/ScotHC/2023/2023_HCJAC_42.html
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[2023] HCJAC 42,
[2023] ScotHC HCJAC_42
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2023] HCJAC 42
HCA/2022/187/XC
Lord Justice General
Lord Pentland
Lord Matthews
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
APPEAL UNDER SECTION 74
OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
ANDREW GERALD LINGARD
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: McCall QC; John Pryde & Co SSC (for Russells Gibson McCaffrey, Glasgow)
Respondent: Goddard QC (sol adv), AD; the Crown Agent
3 August 2022
Introduction
[1]
The appellant is charged with lewd, indecent and libidinous practices towards LY in
2005 when, in the August, she was under 12 and, from August to December, when she was
over 12 but under 16. The charges ((4) and (5) on the indictment) libel touching and, on
occasion, digitally penetrating the complainer's vagina.
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[2]
The appellant faces other charges involving the complainer's older sister LA, who
was the appellant's then partner, notably (charges (1) to (3)) an indecent assault in 2005 and
a number of rapes in 2007 and 2010. The final charge (charge (6)) libels lewd, indecent and
libidinous practices towards LY's twin sister, namely LE, between 2006 and 2009, when she
was over 12 but under 16.
[3]
The appeal concerns the admissibility of evidence to prove an exchange of text
messages between the appellant and LA in August 2013. The Crown wish to lead this
evidence as amounting to an admission by the appellant that he engaged in the conduct
libelled in charges (4) and (5). The appellant maintains that the evidence is irrelevant, and
thus inadmissible, because his remarks were neither made after he had been confronted with
the allegations nor did they contain sufficient detail to link the appellant with the charges.
The appellant relies on Gracie v HM Advocate 2003 SCCR 105 and G v HM Advocate 2012 SLT
999. As such, the argument is similar to that presented recently in CR v HM Advocate
The Texts
[4]
The exchange of texts occurred on 12 August 2013. At that time, LA had not
reported any allegations about the appellant to the police or mentioned them to her family.
She had first told her sisters, LY and LE, of her own allegations in July 2019 and reported
them to the police in the following month. LE reported her allegations at about the same
time.
[5]
LY had told BW, a family friend, of her allegations sometime in the Summer, 2012.
BW asked LA to come to his house where LY told LA that "Andy" had digitally penetrated
her on more than one occasion when she was 11 or 12. LA texted the appellant in 2012 to the
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effect that LY had "cut herself because of what you did to her, I know what you did to her".
The appellant replied along the lines of "I'm so sorry I didn't know what I was doing. You
have to speak to me".
[6]
On 12 August 2013 the appellant texted LA that TW, who was living with LY at the
time, had "contacted" him and called him a "p***k". The appellant did not know TW, but
he did know that TW was friendly with LY. The appellant said that he knew "fine" that he
was more than a "p***k". The only thing that was keeping him alive was that he did not
want to embarrass his parents and the rest of the family. He felt sick, "disgusted and ridden
of guilt" (sic). He faced losing "his job, ... family, ... friends and jail for years and years".
He was "f******g s**t scared" not for himself but his parents and the "kids". He had already
ruined his, that is also LA's, family. He had been "living with that guilt every day and [was]
so sorry" even although the "full damage", in the form of the impact on his family, had not
been experienced.
[7]
LA replied that she had been trying to keep "it" from his family. She would try to
persuade LY to get TW to back off because she did not "want that right now she wants to
move on". LA's family were not aware of the situation. The appellant asked rhetorically
whether "this" was "going to get a lot worse". If LA's family found out, the appellant said
"they'll kill me, at least hospitalise me". He deserved all that he had coming but not that
form of retaliation. He had hurt the people that he loved "in such a selfish way". He had
not appreciated what he was doing. Revealing what he had done would now hurt others
"for my mistakes". He apologised once again, having mentioned the prospect of "court
cases, papers, jail".
[8]
LA responded that it was a bit late to be sorry. She and LY had agreed that LA's
family would not find out, because they would kill the appellant. The appellant said that he
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was suicidal and continued: "God I just want to sit [LY] down and talk because I am so so so
sorry and worry every day about what I've done..."
[9]
The appellant returned to the theme of the effect that "it" would have on members of
his family. They would have to move town and lose their friends. He accepted that "this"
was all his fault. He sought LA's help and asked if she and her family wanted revenge by
going to the police. LA said that she would not go to the police because she did not want LY
"going through that" nor did she want to put the appellant in hospital. The exchanges
continued along the lines of the appellant seeking LA's help, but fearing that he would end
up in the jail or dead.
[10]
LA testified that the text exchange related to the appellant's treatment of her and to
his "sexual abuse and grooming of" LY. There was nothing else to which the texts might
have related. The appellant had been seeking her assurance that "they" would not go to the
police.
The Decision at First Instance
[11]
The submission at first instance was that, although the texts were capable of being
construed as an admission to some form of wrongdoing, they were not made in response to
any specific allegation about the charges libelled. They were therefore irrelevant and
inadmissible. The case law determined that, unless the appellant had been confronted with
an allegation in sufficient detail to permit the conclusion that his response was an admission
of the particular offence with which he was charged, the statements were irrelevant.
[12]
The judge reasoned that an extra judicial statement was a piece of circumstantial
evidence which was as cogent as blood on clothing or finding stolen goods on a person
(Hume Commentaries II 333). It was not only "clear and unequivocal admissions that had
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evidential value" (Greenshields v HM Advocate 1989 SCCR 637 at 642). The question for the
jury would be whether the texts constituted an admission at all and, if so, an admission of
what (ibid). Whether a statement was an admission to a particular crime depended upon
what a reasonable jury, with knowledge of all the facts, would be entitled to make of it (Khan
v HM Advocate 1992 SCCR 146; HM Advocate v Auld 2016 SCCR 159 at para [58]). Gracie and
G had been instances in which the appellate court had been looking at matters post-
conviction and decided that a reasonable jury could not have regarded the statements as
admissions to the crimes charged. If what was said could reasonably be construed as an
admission to specific criminality, the question of whether it did so was one for the jury. A
prior accusation was not a precondition to relevancy. A statement which was spontaneously
made could be admissible.
[13]
The context of the text exchange had been the communication from TW. On realising
that there was a connection between TW and LY, the appellant had contacted LA. The
conversation which then occurred went on for several hours. From it, a jury could infer that:
the appellant was discussing things that he had previously done to LY. Those things made
him feel guilty, disgusted and suicidal. They could lead to the loss of his job, friends and
family and to retaliation. The appellant knew that what he had done was criminal. The
police could become involved and he might be given a long prison sentence. LA was unable
to think of anything else to which the conversation might have related. The evidence was
relevant and admissible.
Submissions
[14]
The ground of appeal was that Gracie and G were binding on the judge and he ought
therefore to have excluded evidence of the text exchange. The appellant had never been
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confronted with the allegations forming charges (4) and (5); only what had been said in a
text which had been sent 12 months previously. The judge erred in his reliance on
Greenshields, in which specific allegations had been put to the accused. He erred in
distinguishing Gracie and G, which were directly analogous. He erred in holding that a
spontaneous extra-judicial statement was admissible in the absence of a confrontation with a
specific allegation and where there was no detail of criminal conduct in the statement itself.
There was no link between what the appellant had been talking about and what was
libelled.
[15]
The first question was whether what was said could be construed as an admission.
The second was, an admission of what? An admission could not be relevant without
evidence of the allegation which prompted it (G v HM Advocate at para [21]). The jury could
not be left to speculate (Stirling v McFadyen 2000 SCCR 239 at 242; Gracie at paras [8] and [9];
G v HM Advocate at paras [21] [24]). They could not be required to ask themselves what
other conduct towards LY might have been involved. Context was vital (Auld at para [57]).
CR v HM Advocate and WM v HM Advocate were distinguishable. They had not overruled
either Gracie or G.
[16]
The Crown responded that, in the whole circumstances, it could be inferred that the
messages amounted to an admission of sexual assault of LY. No confrontation was required
(HM Advocate v Auld at para [57]) provided that there was evidence about the detail of the
allegation to which the accused was speaking (Greenshields v HM Advocate). The overriding
objective was to avoid the need for the jury to speculate about what an accused was
admitting (cf Gracie). The texts provided support for LY's account of the events libelled in
charges (4) and (5). As such they were corroborative of that account and hence relevant (CR
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v HM Advocate at para [19]; WM v HM Advocate at para [12]). The issue was highly fact
specific.
Decision
[17]
In CR v HM Advocate [2022] HCJAC 25 it was said (LJC (Lady Dorrian), delivering
the opinion of the court, at para [15]) that:
"Whether, and to what extent, a comment or reply made by an accused person may
properly be regarded as an admission is a fact specific question, the answer to which
depends on the nature and content of the comment and the circumstances in which it
was made. The contextual situation is important."
The court in CR "readily distinguished" both Gracie v HM Advocate and G v HM Advocate
because in these cases, "rightly or wrongly", there was insufficient means by which to
identify the nature of the conduct to which the accused's comments were related. In CR, the
context was "clearly an allegation of having sexually abused" the complainer. The court
was at pains to point out that, if Gracie or G had given the impression that only unequivocal
admissions in the clearest terms could provide corroboration, that was not consistent with
authority. It was sufficient if the admission was capable of providing support for, or
confirmation of, or fitted with, the principal source of evidence (Fox v HM Advocate 1998
JC 94). It was not only clear and unequivocal admissions which had evidential value
(Greenshields v HM Advocate 1989 SCCR 637). CR v HM Advocate has been followed in WM v
[18]
The court agrees with the rationale in CR v HM Advocate and is unable to identify
any reason to distinguish it from the present case. The issue is essentially one of the
admissibility of circumstantial evidence. It is thus quintessentially a fact- sensitive question.
The context is TW's accusation that the appellant was a "p***k"; TW being a friend (and, as
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it turned out, the partner) of LY. The appellant had phoned LA; throwing himself at her
mercy in the knowledge that he had done something to LY that made him feel sick and
disgusted. The only thing, that the evidence discloses, which the appellant had done to LY
is that contained in the narrative of charges (4) and (5); that is to say the lewd, indecent and
libidinous behaviour and practices. That being so, the jury would be entitled, although not
bound, to hold that what the appellant said in the texts amounted to an admission that he
had conducted himself as libelled.
[19]
The reasoning of the judge at first instance is sound. The appeal is refused.
