Witness's injury-induced memory loss not a "mental condition": Appeal Court
A witness who could not remember making a statement to police due to memory loss caused by a subsequent head injury, from which he had otherwise recovered, did not suffer from a "mental condition" within s 259 of the Criminal Procedure (Scotland) Act 1995, the Criminal Appeal Court has ruled.
The court, with Lord Justice General Carloway presiding, held that the statement should have been put to the witness under s 260 of the Act with a view to him adopting it as his evidence.
A sheriff had therefore been wrong to rule the statement admissible hearsay evidence at trial. However there had been no miscarriage of justice where there was otherwise a sufficiency of evidence and it only spoke to limited matters in the context of the trial.
However the court refused the appeal before it, by David Glass against his conviction of lewd, indecent and libidinous practices against three young boys, WW, his brother SW (since deceased) and JM, offences allegedly committed in the 1980s and 1990s.
The incidents concerning the brothers were said to have taken place in a caravan at Crail. Another brother, DW, had made a statement to police in 2014 which referred in some detail to DW babysitting at the caravan and staying overnight, and to an occasion when the appellant had attempted to touch DW's penis, which DW had prevented. This was the subject of another charge which did not result in conviction. DW had permanent memory loss as result of a road traffic accident in 2017, and had no recollection of giving the statement or the events described in it. He was said to have had made a very good recovery from a significant traumatic brain injury, but a consultant reported that it was "entirely probable" that DW’s "inability to remember giving a statement and certain previous events" was "entirely attributable to the extent of the traumatic brain injury", and that this was "likely to be permanent".
The Crown sought to lead the evidence under s 259. This was opposed on the basis that the relevant part of s 259(2) only applied when a witness was unfit or unable to give evidence. DW could give evidence, even if he was apparently unable to recollect certain events. The sheriff granted the application because he was satisfied that, as a result of his mental condition, DW would be unable to give evidence in any competent manner.
Before the Appeal Court the Crown argued that the purpose of s 259 was to admit exceptions to the prohibition on hearsay in circumstances other than when the witness was dead. The fact that a person could turn up at court did not make him an available witness; and "mental condition" was not synonymous with "mental disorder".
Giving the opinion of the court, Lord Carloway, who sat with Lords Brodie and Turnbull, said s 259 was aimed at witnesses "who cannot give evidence as a generality because of their mental condition". He continued: "DW was able to give evidence about the 'matter' in the statement. His evidence would, according to the Crown, have been that he could not remember the incident or giving the statement. Such a state of affairs, at least in relation to the event, is not unusual. It does not amount to an unfitness or an inability to give evidence as envisaged by the section...
"Section 259 is not designed to deal with the situation where, for whatever reason, the witness, whilst capable of giving evidence generally, has forgotten about a particular event. In that situation, the witness can be asked, in terms of s 260, whether he 'adopts' the statement bearing his signature. There is no reason to suppose that the witness would have done other than accept that the signatures on the statement were his and that he would, as it is customarily put, have been telling the truth at the material time".
In any event, Lord Carloway added, the material produced was insufficient to support the application. The extent of DW’s memory loss was not made clear, and the medical report proceeded on an assumption concerning DW’s amnesia which had not been medically attested. "For these reasons, the Crown’s concession concerning the adequacy of the supporting material was correctly made. Accordingly, the statement ought not to have been admitted as an exception to the prohibition against hearsay."
No miscarriage of justice had occurred, however. A direction in respect of the charges of which the appellant was convicted that the only mutual corroboration available was from the two complainers who had testified, appeared to have been erroneous, but favoured the appellant. "It makes it clear that the jury must have accepted the evidence of the two complainers, namely WW and JM, as credible and reliable. Once they had done that, a conviction was bound to follow. Any impact which the statement of DW would have had would, especially standing the limited nature of the conduct alleged, have been minimal."
The appellant succeeded in having his sentence reduced from five years to three, having regard to a sentence for analogous matters which he had already served; and an extended sentence element was held to be incompetent having regard to the age of the offences.