Deceased's statement allowed as Moorov support
The use of the hearsay witness statement of a complainer who had since died, and who was one of two complainers in charges which relied on the Moorov rule for corroboration, did not render the trial “unfair” in terms of article 6 of the European Convention on Human Rights, the Criminal Appeal Court has ruled.
Lord Justice General Carloway, Lord Menzies and Lord Turnbull gave the decision in refusing an appeal against conviction by AS, who was found guilty of three charges involving the indecent assault, attempted rape and rape of his sister, AB, and an indecent assault on a male cousin, CD.
By the time of the trial CD had died. The Crown relied on a statement which he had given to the police in order to prove not only the charge involving CD, but also, by way of mutual corroboration, those involving AB.
The latter charges libelled offences in the family home between 1975 and 1980, when AB was aged between 11 and 16. The charge involving CD (charge 4) dated from 1976 or 1977, when CD was aged five or six. AB had made no report until contacted by the police in 2017, after CD had complained of having been abused. CD had given a detailed statement in the presence of an appropriate adult, and had made some alterations to it before signing it.
At trial the judge repelled an objection, raised as a compatibility issue, to the admission of CD's evidence, taking the view that CD's hearsay could not be characterised as “decisive”, as that term was understood in European Court of Human Rights jurisprudence; in any event there were sufficient safeguards to ensure a fair trial.
On appeal it was argued for CD that there was nothing, such as de recenti evidence, directly supporting the credibility of CD's account; that account was the only one provided by CD; the statement was provided 40 years after the event; and all these matters presented substantial difficulty in mounting a realistic challenge to CD's credibility. Hearsay evidence had been held unfair in a three complainer case, M v HM Advocate (2003).
Delivering the opinion of the court, Lord Carloway said the hearsay was admissible if the conditions of s 259 of the Criminal Procedure (Scotland) Act 1995 were met, and the court had no discretion on this point. There was no issue as to whether AB's and CD's evidence was mutually corroborative.
Fairness was a separate issue. Under ECtHR jurisprudence the court required to examine whether: (1) there was a good reason for the non-attendance of the witness; (2) the hearsay was the sole or decisive basis for the conviction; and (3) there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps caused to the defence and to ensure that the trial as a whole was fair: Schatschaschwili v Germany (2016).
Condition 1 was satisfied as CD was dead. Regarding condition 2, CD's evidence was not determinative of the charges concerning AB: although corroboration was required by Scots law, that was not a requirement of the European Convention. The appeal was therefore “almost bound to fail” as respects those charges, though counterbalancing factors had still to be considered.
These factors had to permit a fair and proper assessment of the reliability of the evidence. In the present case AS had been able to challenge AB's testimony in the conventional manner. As respects charge 4, although it would have been better if CD's statement had been audio or video recorded, it was in written form, taken in a relatively formal setting with a responsible adult present, signed on each page by all present with corrections initialled by CD. “The prospect of the statement not being something which CD had said, whether true or reliable, is substantially diminished.”
Lord Carloway concluded: “The trial judge gave the jury specific directions on the dangers of accepting hearsay. He emphasised that the defence had had no opportunity to test the statement by cross-examination. The jury had not had the opportunity to assess CD’s demeanour. The judge told the jury that they had to take 'great care in evaluating the evidence'. There was corroboration in the form of the testimony of AB speaking to what the jury must have accepted to be comparable offences, each being sexual abuse of younger children in the family setting. The appellant was able to testify on his own behalf and to lead evidence in support of his position. The deceased was a person known to the appellant who would have had some appreciation of his circumstances. The appellant was able to make submissions to the jury which were designed to cast doubt upon the veracity of the statement.
“For these reasons, the safeguards were sufficient to ensure that the appellant had a fair trial. The appeal is refused.”