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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Osborne
Lord Johnston
Lord Reed
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[2008] HCJAC30
Appeal No: XC924/05
OPINION OF THE COURT
delivered by LORD JOHNSTON
in
NOTE OF APPEAL AGAINST
CONVICTION
under section 110 of the Criminal Procedure (Scotland) Act 1995
by
MARK ANDREW STEPHEN HUMPHREY
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
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Act: Forbes, Balfour + Manson,
LLP
Alt: Ogg, QC, AD; Crown Agent
28 May 2008
[1] On 14
October 2005
the appellant was convicted after trial at Glasgow High Court of the following
charge:
"on
22 April 2004 at Lamlash Crescent, Glasgow, you did assault
Alison McIntyre, c/o Strathclyde Police, Easterhouse, Glasgow and while
she was under the influence of alcohol and drugs and bereft of the power of
resistance, drag her into a car park there, push her to the ground, pull down
her clothing, struggle with her, repeatedly punch and kick her on the head, lie
on top of her and rape her, all to her severe injury."
[2] Before this
court the appellant lodged a number of grounds of appeal but the only one that
was insisted in before us after being amended was in the following terms.
"That the learned judge erred in
repelling the submission by the defence at the close of the evidence that the
leading by the Crown of hearsay evidence in terms of section 259 of the
Criminal Procedure (Scotland) Act 1995 relating to a deceased witness Joseph
Robertson was unfair and in breach of the appellant's right to a fair trial in
terms of Article 6 of the European Convention on Human Rights and that as
a consequence the judge erred in refusing to withdraw said evidence from the
jury's consideration. It is submitted
that the hearsay evidence led which was contained in Crown Production 13
was decisive in the case in that the Crown had to rely on what the deceased
Robertson saw to corroborate that the appellant knew the complainer was not
consenting to intercourse. Having lodged
a devolution issue notice in advance of the trial objection was taken timeously
during the trial to the leading of the said hearsay evidence. It is respectfully submitted that standing
the fact the Crown required to rely on the evidence of
what the witness saw to a decisive extent the learned judge erred in repelling
the defence submission."
[3] Section 259
therein referred to is as follows.
"Subject to the following provisions
of this section evidence of a statement made by a person otherwise and while
giving oral evidence in a court in criminal proceedings shall be admissible in
those proceedings as evidence of any matter contained in the statement...."
[4] The various
provisos attached to that section are not relevant to the present appeal in as
much that no point was taken in respect of any of them.
[5] On the face
of it the ground of appeal finally focussed before us after adjustment would
appear to raise what is generally regarded as a devolution issue but after some
discussion counsel for the appellant accepted that there was no such issue in
this case as now focussed. The proper issue being in relation to the conduct of the court as
regards the use to be made of the hearsay evidence once it was admitted not
least in the context of the human rights legislation.
[6] Counsel
focussed on two cases in relation to the inter-reaction of section 259 above
referred to and the European Convention on Human Rights, in particular
Article 6(1) and (3)(d). The principal case was Nulty v HM Advocate 2003
SCCR 378 and a subsequent case in the same year of Campbell v HM
Advocate 2003 SCCR 779. It has
to be stated at once that both these cases concerned trials which took place
before the Human Rights Act came into force and accordingly any question of
fairness of trial under Article 6 of the Convention was being focussed on
a devolution issue. A minute to that
effect was lodged before the start of the trial. The Advocate General did not intervene but as
we already stated the whole question of the devolution issue has disappeared in
the context of this appeal. To some
extent however, the human rights issue under the latter legislation has
not.
[7] The substance
of the decision in Nulty was that the
admissibility of hearsay evidence which could not be cross-examined amounted to
a lack of fairness in the trial although it has to be again stated at once that
that matter was conceded by the Crown in the case which leaves it to our mind
of very little significance. In the
latter case of Campbell some qualification was admitted by
the Court to the extent that if the evidence was decisive in the context of
hearsay it might remain unfair for it to be used and the question thus became
one of degree.
[8] The facts and
circumstances of the case which are not in dispute to this extent are that the
complainer left a taxi in the company of the appellant on the taxi driver's
evidence completely unharmed, albeit drunk, while the appellant was in an
aggressive and argumentative mood. When
next seen by independent evidence the complainer was very seriously injured and
while she could not apparently remember what had precisely happened to her, the
appellant admitted sexual intercourse had taken place and at the end of the day
the issue on the facts of the case was whether the evidence supported a lack of
consent on her part. We were shown
photographs that were before the jury which indicated widespread and awful
injuries to the complainer from her head to her feet. The witness Robertson, the source of the
hearsay evidence since he is now deceased, said in a statement to the police
which was relied upon by the Crown that he had seen various aspects of the
matter taking place in the street not least that the complainer was dragged
across the street by the appellant, that he was seen lying on top of her, that
she was apparently moaning, her legs were bare although she had apparently worn
trousers before and she was left in a very distressed state.
[9] At the trial
the principal attack upon the credibility and reliability of Robertson was that
he was admittedly of very limited sight and accordingly an ophthalmologist
doctor was led in this respect. His
evidence was at the very least prima
facie unreliable which increased, as counsel developed in his argument, the
need for him to be cross-examined properly or indeed at all if the appellant
was to have a fair trial.
[10] Mr Forbes
developed his argument by focussing upon the importance of the evidence of
Robertson which he maintained, contrary to the way the ground of appeal was
apparently focussed, essentially was the substance of
the Crown case and not merely providing corroboration. This he based upon the fact that the
complainer could not remember what had actually happened to her in terms of any
sexual contact. He maintained that in
terms of paragraph 36 of Nulty
the trial judge having admitted the evidence under section 259 should have
either supported the submission of no case to answer in which case he submitted
there would not be sufficient evidence if Robertson's evidence was withdrawn or
withdraw it from the jury or direct them that they should ignore it or even in
the extreme desert the trial pro loco et
tempore, all because of the potential unfairness if not actual unfairness
to the appellant of the evidence being before the jury, not having been
adequately cross-examined or investigated.
[11] The response
by the Advocate Depute was of a radical and totally different nature. He maintained that the case was one of
circumstantial evidence of a very strong nature in which the evidence of Robertson
on the hearsay basis provided only a part and not even an essential part of the
whole Crown case. He drew our attention
to the evidence of the taxi driver to which reference has already been made, the
extent of the complainer's injuries, the very important fact that they were
always together during the relevant period;
she had made it clear in evidence that she would not have voluntarily
submitted to sexual intercourse in the street or indeed in any street, the
evidence from Robertson which was not referable to his sight, namely moaning,
both during and after the alleged sexual event was of high significance; the
evidence of a porter at a nearby set of flats who deponed to the general state
both physically and mentally of the complainer after the event and all this in
the context of an admission by the appellant that sexual intercourse had taken
place, his position being obviously with her consent.
[12] The Advocate
Depute submitted that the evidence of Robertson therefore while material, was
not remotely to be categorised as decisive and he went so far, which the trial
judge seemed to have accepted in her own assessment of the position at the time
of the argument with regard to no case to answer, was not even essential to the
conviction, there being sufficient evidence without it.
[13] Any question
of devolution issues in this case having been admittedly abandoned, the only
European dimension in this case which remains, but nevertheless with some
importance, is that of the human rights legislation. We recognise that there is a real question as
to how section 259 (supra) should be
interpreted in the context of that legislation and we reserve that issue for
another day, the matter not having been properly explored in this case. Suffice it to say for the purpose of this
case that we are satisfied that the admission of the evidence in question, in
the context of the evidence as a whole and the directions given by the trial
judge to the jury, did not compromise the fairness of the trial
[14] Having said
that, in this context we do not consider that the human rights legislation adds
anything to the overall responsibility which has always been incumbent on the
court to ensure that a fair trial takes place.
The question there to be determined by this court in this case is
whether having correctly admitted hearsay evidence thereafter whether the trial
judge properly monitored its effect, use and ultimate relevance as a matter of
fairness in the context of a fair trial.
[15] In this
respect we are entirely satisfied the trial judge followed an appropriate
course both in her managing of the trial and in her directions to the jury
which were not in any way challenged in this context. As she says in her report she was satisfied
that it was not unfair for the jury to continue to consider the hearsay
evidence of Robertson in its overall context.
We do not accept that it was remotely decisive whatever that word may
mean in the present case given that we are satisfied that there was sufficient
evidence to support the conviction even if his evidence had either never been
proffered as hearsay or been removed from the purview of the jury. We consider the Advocate Depute's adminicles
pointing to the circumstantial case are overwhelming.
[16] While upon the
evidence the complainer might have considered sexual intercourse at some stage
of the evening, there is little doubt by the time she left the taxi, on the
taxi driver's evidence, she was neither contemplating it nor in any event
willing to submit to it in the street.
The injuries with which she was found to have suffered comparatively
shortly afterwards upon the evidence are appalling. While the appellant admitted to some aspects
of assault there is no way that those admissions could account for the extent
of the injuries overall, which could be accounted for by forcible intercourse
on a hard surface namely a pavement, of a violent nature. It is highly significant that the complainer
maintained that she would not have been willing to have sex under any
circumstances voluntarily in the street.
The evidence from Robertson of moaning which is nothing to do with his
eyesight, both at the time and thereafter is at the least consistent not with
any form of sexual voluntary conduct but rather with an aggravated assault
having taken place and the fact that the porter in question heard her moaning
thereafter supports that view.
[17] It is
therefore our view that the evidence disclosed in this case supports
overwhelmingly the conclusion that the appellant forcibly raped the complainer
without any reference, possibly with the exception of moaning, to the evidence
of Robertson at all. We further consider
that in this context it was entirely appropriate and certainly within a
legitimate exercise of her discretion as trial judge in the context of the
fairness of trial for her to have left the matter to the jury for their
consideration in the overall context and by the matter we mean the content of
Robertson's hearsay statement. We do not
consider that it falls in the category of decisiveness as focussed by the case
of Campbell although we
repeat we have great difficulty in understanding the meaning of such a word in
the context of a circumstantial case.
[18] In these
circumstances putting aside any questions of European jurisprudence on the
general issue of hearsay evidence and its impact on a trial in the context of
the Convention we are satisfied on a simple common law approach that there was
sufficient evidence before the jury, even without the evidence of Robertson and
certainly with it, to entitle them to convict of rape. All the relevant evidence was appropriately
before them, and we will not interfere in that respect.
[19] In these
circumstances this appeal must fail and will be refused.
