Admissible hearsay?

Statements given before memory loss

Two cases this month involve aspects of hearsay. While we are all taught hearsay is potentially unreliable and inadmissible despite most witnesses wishing to include it in their testimony, this prohibition has been eroded over the years. As we move to a “no evidential rules” future, we may have to accept evidence from a witness launching into a “so she said X and I was like Y and then Jeanie said Z” testimony!

In Glass v HM Advocate [2018] HCJAC 70 (30 October 2018) Lord Carloway delivered the opinion of the court in a case involving a statement proffered by the Crown under s 259 of the Criminal Procedure (Scotland) Act 1995. The case involved charges of historical sexual abuse committed against two brothers and another child. The Crown sought to introduce the statement of a third brother, taken by police during inquiries in 2014. In 2017, this witness had been seriously injured in a car crash, with injuries including a permanent memory loss. While the witness had made a good recovery, his memory deficits were “in all probability likely to be permanent”. The statement was allowed at trial by the presiding sheriff.

The Appeal Court held the statement should not have been admitted. It was not clear what the extent of the witness’s memory loss was. His situation did not fit the exceptions to the hearsay rule listed in s 259, as he was not unfit to come to court. Section 259 was not designed for people who had forgotten their evidence. It was possible to ask if the witness recognised his signature on the statement and whether, if given, it would have been the truth. The court also held that admitting the statement did not result in a miscarriage of justice in the circumstances and the appeal against conviction failed, although sentence was reduced.

Inconsistent statements

In Graham v HM Advocate [2018] HCJAC 69 (15 November 2018), the complainer in a rape case had been a difficult witness for the police to obtain full information and clothing from following her being found in a distressed state in the early hours. She was a troubled young woman and sadly took her own life, for unconnected reasons, prior to trial. A total of seven statements had been made, including the initial 999 call transcript.

The complainer had been found barefoot in the street, with few clothes on, in a frightened state, by a couple at 5.40am. She used their phone to call 999 and was seen by police shortly afterwards in her home, when she was described as being tearful, upset and irate. She had injuries consistent with her complaint of being physically assaulted. The house was in disarray with broken furniture in the bedroom and blood in the bathroom, bloodstaining on the duvet cover and a piece of wood on the stairs which might have been used to strike her on the face. The complainer told the officers she had been assaulted and had fingers and an aerosol can inserted into her vagina by the accused. She was treated by ambulance staff for a cut but declined to attend hospital. The sexual element of the assault was not included in a formal statement to a third officer shortly after. A further statement later that day was fuller and repeated the details of the sexual assault. She declined to hand over the pants she was wearing, but allowed them to be examined by a policewoman, who noted no damage. The complainer handed in a ripped pair of pants the following day, saying these were what she had been wearing but she had since washed them. In a further statement she gave further detail of the assault, and said she had been to the doctor as she had a sore vagina. She gave DNA samples, and agreed to a medical examination but failed to attend.

The appellant gave a statement admitting he and the complainer had had a row about buying drugs. He asked to have sex but was rebuffed and he said he accepted that, but she was hitting him so he threw her across the room. He accepted she had climbed out of the window in her pyjamas and he had tried to get her back. He was placed on petition and released on bail. A GP gave evidence of seeing the complainer the day after the assault, when she looked distressed. She said she had been raped by her boyfriend a few days previously.

DNA samples from an aerosol can showed her blood on it as well as staining from her and the appellant. Forensic analysis was consistent with the pants being damaged by pulling, but there was no evidence of them having subsequently been washed. Swabs from the appellant’s hands and fingernails gave a positive presumptive test for blood, and his DNA was found in the samples along with another trace consistent with the complainer’s DNA.

A day after the appellant was liberated on bail, the complainer made a 999 call describing being raped again in her house by the appellant who had had a knife. She allowed swabs to be taken and handed her pants over to the police, but failed to attend a medical examination which had been arranged. The appellant was arrested, and swabs from his penis contained traces of the complainer’s DNA, the likely source being bodily fluid such as vaginal cells consistent with intercourse. A trace of his semen was found in his pants.

The appellant intimated a defence of consent, but had made no comment when arrested on the second occasion and did not give evidence. Challenge was taken to the complainer’s various s 259 statements: the defence were denied the opportunity of cross-examining the complainer on what was decisive evidence especially since there were discrepancies in her statements and an equivocal attitude displayed at times during police procedures.

The court was satisfied in relation to the second incident that there was sufficient evidence of rape without the complainer’s statement, so it followed that her statement was not decisive in that matter. As regards the earlier incident involving charges of sexual assault and assault, the interests of justice were in favour of admitting the statements, most of which had been recorded in proper form. For corroboration there was circumstantial evidence from a number of sources to support the complaints made in relation to the first incident. The Crown had been prepared to concede the complainer’s evidence was decisive in the rape case, but the court disagreed and allowed that concession to be withdrawn. However the court held there were safeguards from the evidence of the couple who had met her, the various police officers and doctors who saw her, the forensic evidence and the appellant’s mixed statement. The appeal was refused, as was the sentence appeal. The appellant had no analogous convictions but had committed a particularly unpleasant sexual offence, and three years and 18 months concurrent for the first incident was not excessive, nor was seven years consecutive for the rape since it came shortly after the appellant had been bailed under conditions not to approach the complainer.

Deletions in verdicts

Where a conviction for assault to severe injury is returned by the jury with deletions in the libel which may point to the modus, it does not follow that the verdict is inconsistent or perverse.

Dennie v HM Advocate [2018] HCJAC 67 (26 October 2018) involved an assault to severe injury and permanent disfigurement by one woman on another, including an averment of striking the complainer’s head “against a glass vivarium [a big spider tank] and repeatedly [striking] her on the body with glass”. It was argued on appeal that the deletion of the words referred to above demonstrated that the jury must have concluded the appellant did not assault the complainer with glass, and the aggravation to her severe injury and permanent disfigurement should be deleted. The Appeal Court disagreed, holding that if a person assaulted was forced against a surface or object made of glass which shattered, causing lacerations, the assailant was responsible for them even if he or she did not strike the complainer with an object made of glass. Similarly, if a person was assaulted and fell or came into contact with a surface or object and suffered lacerations, the assailant was responsible. If the injuries were caused by parties struggling or rolling about on the floor there was no need for the libel to be amended to take account of that.

Sentencing issues

Finally, three cases give helpful opinions on aspects of sentencing.

In Shanks v PF Glasgow [2018] SAC (Crim) 18 (10 October 2018) the appellant pled guilty to threatening to disclose photographs of his former partner in an intimate situation, contrary to s 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. A 12 month community payback order with supervision and a requirement to undertake 135 hours’ unpaid work was argued to have been excessive. The court noted that once individuals disclosed intimate images on a private basis they were vulnerable to considerable embarrassment and upset if that anticipated privacy was not maintained. The offence was triable either way, with up to five years’ imprisonment on indictment, therefore Parliament viewed these offences extremely seriously. While the appellant made the threat while under the influence of alcohol, it clearly had an immediate effect on the complainer. The court had no doubt the appellant’s actions were abusive and the sentence imposed was warranted, being within the upper end of the range open to the sheriff.

A non-harassment order was quashed as there appeared to be a discrepancy about the complainer’s position, on which the sheriff should have sought clarification. It was, however, apparent to the Appeal Court that this order was not required by the complainer.

Doherty v HM Advocate [2018] HCJAC 72 (20 November 2018) gives a helpful update on sentencing in cases involving possessing and distributing indecent images of children. The appellant had admitted possessing 152 moving images, of which 74 were classed at category A and 65 at category B, and 61 still images, 47 at category A and the remainder at category B. The distribution charge related to 86 still images, including 61 at category A and 22 at category B. These had been shared by the appellant to 14 individuals and two groups which contained 50 members. The sheriff imposed 12 months’ imprisonment on the possession charge and an extended sentence of 37 months for distribution: a 22 month custodial element and a 15 month extension. The appellant had not received proper advice about an appeal and the matter was referred by the SCCRC in light of the observations in Wood v HM Advocate [2017] SCCR 100 and DS v HM Advocate [2017] HCJAC 12, where it was held to be inappropriate to impose an extended sentence in a possession-type case.

In the present case the sheriff had applied the correct test and referred to guidelines in HM Advocate v Graham 2010 SLT 715, noting the pain and distress of the six month old child in the sample category A film. The sheriff noted the appellant was a first offender, the period was restricted and the number of images was not large. The appellant presented a medium risk in terms of the Risk Matrix 2000 assessment in the background report. He was sexually attracted to children, appeared to lack empathy or understanding as to the consequences of his behaviour, and his attitude was unlikely to change unless he fully engaged with a programme of offence focused work. The offending went beyond possession to include distribution to a large group; and the appellant had been absorbed by such images and had discussed them over the internet with like-minded individuals.

The appellant was in a relationship with a long-term partner, in employment and had a stable career after tertiary education. The Appeal Court nonetheless dismissed the appeal as it was felt a custodial sentence was merited and sufficient information was given to establish a link between his offending and the need to protect the public.

What to do when a restriction of liberty order is breached and revoked? In Flannigan v PF Glasgow [2018] SAC (Crim) 17 (4 July 2018), the appellant had pled guilty to a contravention of s 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (threatening or abusive behaviour) and was sentenced to a Restriction of Liberty Order (RLO) from 7pm to 7am each night for 170 days from 9 February 2018. The sheriff was later presented with two breach reports dated 3 and 29 April specifying repeated breaches of curfew. The appellant admitted the breaches and the sheriff noted he had 12 analogous convictions and no longer wished to comply with the order. He had breached previous community payback orders. The sheriff revoked the order and in terms of s 245G of the 1995 Act imposed 170 days’ imprisonment in lieu.

The court accepted the RLO had only been in force for four days when the appellant started breaching it; however he had been the subject of the order for 90 days until it was revoked. While the court specifically rejected an approach which sought to apply a proportionate discount to time spent on the order, the sheriff in making a qualitative assessment of the RLO failed to take sufficient account of the number of days of compliance. The headline sentence of 180 days discounted to 170 days should have been reduced to 135 days’ imprisonment.