Lord Reed

Appellant: Burns, Q.C., Niven Smith; Drummond Miller, W.S.

Respondent: Allan, Q.C., A.D.; Crown Agent

10 July 2008

Introduction

The appellant was convicted on indictment on 5 October 2005 of two charges of sexual abuse of children. The charges related to the period between 1988 and 1990, when the complainer on charge 1 was aged between 6 and 8, and the complainer on charge 2 was aged between 5 and 7. At the trial, the defence was based on an attack on the credibility and reliability of the complainers' evidence: the appellant did not himself give evidence. Proof of guilt depended on the principle of mutual corroboration. It was therefore essential that each complainer should be accepted as credible and reliable as to the essentials of the relevant charge. The verdict was by a majority.

During the course of the trial, counsel for the appellant wished to cross-examine each of the complainers on the basis that she had previously made statements which were different from the evidence given by her at the trial. Under the impression that such cross-examination fell within the ambit of section 274 of the Criminal Procedure (Scotland) Act 1995, counsel applied to the sheriff during the course of the trial, under section 275, to be allowed to question the complainers about the previous statements. The sheriff granted some parts of the applications, but refused other parts. To the extent that the applications were refused, it is conceded by the Crown that the sheriff erred in law: the proposed cross-examination was permitted by section 263(4) of the 1995 Act, and did not fall within the ambit of section 274: HM Advocate v DS 2007 S.C.(P.C.)1.

In these circumstances, the question which arises is whether the refusal of the sheriff to allow counsel to question the complainers about the matters in respect of which permission was refused has resulted in a miscarriage of justice.

The first complainer

In her evidence in chief, the first complainer stated that she had been sexually abused by the appellant as alleged in charge 1. She could not remember on how many occasions she had been abused, but there were two occasions which she could definitely remember. On those occasions she had been at the appellant's house. He babysat for her parents.

In cross-examination, counsel for the appellant applied for, and was granted, permission to question the complainer about a statement which she had given to a police officer in December 2003, in which she was recorded as having said that the abuse had happened on a fairly regular basis and had gone on for months. In other respects, the statement was consistent with her evidence. When the statement was put to her, she accepted that that was what she had told the police officer, and that her recollection at that time had been different from her present recollection.

Counsel also applied for permission to question the complainer about evidence which she had given at a previous trial diet (which had been deserted as a result of a problem relating to a juror) concerning an occasion when she had been looked after by the appellant for a number of days while her parents were away from home following her grandfather's death. This matter had been raised by counsel in cross-examination, when he asked the complainer if there had been an occasion when her parents went away for two weeks, and she agreed that there had. Counsel then asked "And on that occasion, was that an occasion when something happened to you?". The complainer answered, "I don't know". Counsel then took from her that the occasion in question had followed the death of her grandfather, and continued "And it was on that occasion that something happened?". The complainer answered, "I don't know". She explained that she only had "memories from bits and pieces" and that she was telling the Court what she could remember from when she was seven years old. Counsel asked for a third time, "And is it not the case that it was on that occasion, that that was the first occasion on which you were abused?". She answered, "I can't remember". She explained that she had also stayed at the appellant's house on sleep-overs with the appellant's daughter, who was a friend, and on other occasions when her parents were out and she was being babysat.

At the previous trial diet, the complainer had said in her evidence in chief that the abuse had occurred in the appellant's house, and that she came to be in the house because the appellant used to babysit. The evidence continued:

"You are saying you went to his house for babysitting? - Yes, my mum went away down to Glasgow for a couple of weeks because my granddad died but I used to stay nights over there because I used to pal about with his daughter".

The complainer went on to explain that the occasion following her grandfather's death was "one of the times that he babysat for us", and that she had been babysat by the appellant on earlier occasions. The evidence continued:

"Had anything happened on these occasions? - I can't remember if it was the time that my mum and dad went away that happened. I can only remember it happening twice in there. I can only remember it properly happening twice.

Right, one of the times, is this when your mum went through to Glasgow because your granddad died, is that what you are saying? - I think so".

As counsel for the respondent acknowledged during the hearing of the appeal, at this stage in her evidence the complainer was uncertain whether she had been abused on the occasion in question. That is also apparent from a later passage in her evidence in chief, when she was asked about the first occasion on which she had been abused:

"Is that the occasion where you mum had gone to Glasgow or was that the other occasion? - I can't remember".

In cross examination at the first trial diet, counsel proceeded as if the complainer had given evidence that she had been abused on the occasion when she was being babysat following her grandfather's evidence, and suggested that evidence to that effect was unlikely to be true, since if (as counsel suggested) her grandfather had died in July, it was unlikely to have been dark outside at a time when the complainer was watching television (as she had described), and her older brother was likely also to have been watching television (the complainer's evidence being that she had been alone with the appellant). The cross-examination continued:

"But would you agree with me that if you were still up watching T.V. it is likely that your older brother was also up watching T.V.? - I don't know. Maybe he was. I don't know. Maybe it wasn't the time that my mum went down to Glasgow. I don't know.

So are you conceding you may be wrong about the time your parents went to Glasgow? - I don't know. I don't know where my mum and that were. I just know I was in the house on two separate occasions and the only reason that I said about my mum being down in Glasgow is because I remember them babysitting for us when my mum and dad went away down to Glasgow because they took my little brother with them and I can't remember whether it was then it happened or whether it was when we used to sleep over it happened. I just remember it happening twice.

Well, Mrs [ ], I don't mean to be picky but I'm afraid as I understood your evidence you were quite clear in your recollection that one of these two occasions you are talking about was on an occasion when your mother and father left you and your brother and they went to your grandfather's funeral in Glasgow ? - Yes, I'm sure it was".

In that final exchange, counsel's unfounded assertion about the complainer's evidence appears to have pushed her into accepting, for the moment, that she had indeed been abused on the occasion following on her grandfather's death. That day's evidence finished soon afterwards. The following morning, in her first answer the complainer re-asserted that she could not remember whether she had been abused on that particular occasion:

"Mrs [], I was asking you yesterday afternoon about one of the two occasions when Mr Dye did various things to you and you were telling us about one particular occasion of the two occasions that you recall and one of those occasions was when your mother and father had gone to your grandfather's funeral in Glasgow, is that correct? - I am not sure whether it was then or not. I just know that they babysat for us when they went, my mum and dad had went down to Glasgow, and I don't know. I maybe just assumed that that was one of the times it had happened on".

The sheriff then intervened:

"BY THE COURT: I wonder, is it fair to put it this way and you tell me whether this is fair or not, that when you are asked to look back the length of time that you are being asked to look back it is your impression that you were in Mr Dye's house for several days rather than just perhaps an overnight or something of that sort? - Maybe. I didnae ken. I'm not sure. I am not sure what you mean.

Well, as I understood what you said to the court yesterday, you seemed to be thinking that this must have happened at a time when your parents were away somewhere? - Yes.

And I gather that, if you like, your thinking is the only time you can think that they were away somewhere was when they went away to your grandfather's funeral? - Yes.

And so it must have been that time? - Yes.

But the reality is that you can't really remember? - Yes

Whether it was that time or some other time? - Yes".

We note that the complainer assented to a series of leading questions by the sheriff. The effect of that assent was to accept the logic of the suggestion that the occasion following her grandfather's death must have been one of the occasions when she was abused, but to maintain her position that she simply could not remember.

Counsel's application at the second trial diet for permission to question the complainer about these passages in the evidence which she had given at the previous trial diet was refused by the sheriff on the basis that there was no material difference between her position at the first trial and the second trial: on each occasion her position was that she could not recall whether one of the episodes of abuse had occurred while her parents were away at the funeral. The proposed line of questioning was accordingly considered by the sheriff to be of no significant value in assessing the credibility and reliability of her evidence.

The second complainer

In her evidence in chief, the second complainer stated that she had been sexually abused by the appellant as alleged in charge 2. The first occasion had been on a Saturday. There were about eight or nine occasions altogether. On one occasion she had screamed.

In cross-examination, counsel for the appellant applied for, and was granted, permission to question the complainer about three passages in a statement which she had given to a police officer in October 2003. In one passage she was recorded as having said that the first occasion when she had been abused had been on a Friday. In another passage she was recorded as having said that the abuse had happened on about 20 to 22 occasions. The statement did not mention screaming, but recorded the complainer as having said that one occasion she had tried to scream but nothing would come out. When the statement was put to her, she accepted that she appeared to have told the officer that the first occasion was on a Friday, but said that she thought the occasion had in fact been on a Saturday. She also accepted that she must have told the officer that abuse had occurred about 20 to 22 times, and said that she could not remember the number of occasions. She accepted that her memory had been affected by the passage of time since she had given the statement. She also accepted that she had told the officer that she had attempted to scream but had been unable to do so. As far as she could remember, she did scream.

Counsel had also applied for permission to question the complainer about a further passage in the statement in which, after describing the second incident of abuse, she was recorded as having said:

"Just after he acted unusual. I can't think why or what he was doing. He acted strange and couldn't remember where the sugar and coffee were but he used to come and help himself anyway".

In her evidence in chief, she had said that after the second incident "he asked us if I wanted my supper and it was just as if everything was back to normal". She had earlier explained that it was usual for the appellant to make her supper when he was babysitting her at her house, as on the occasion in question. Counsel's application in relation to the passage in the statement was refused by the sheriff on the basis that there was no material difference between the complainer's evidence and what she had said in her statement, in the passage in question. The proposed line of questioning was accordingly considered by the sheriff to be of no significant value in assessing the credibility and reliability of her evidence.

The sheriff's directions to the jury

No criticism is made of the sheriff's directions to the jury. It is relevant to note that specific directions were given, in relation to the differences between the complainers' evidence and their previous statements:

"You must be satisfied that both complainers were telling you the truth and that both gave a reliable account of what had occurred to them. In that respect you will have to pay careful attention to the passage of time and why after the passage of such a period of time, when you might have expected their recollections to have crystallised, they each gave accounts to the police in which accounts there are discrepancies from their evidence which they gave to the court and in the case of [the first complainer] there are differences between what she told the court when she first gave evidence last May and what she said this time round. It is for you and not me to reach a conclusion as to why there are differences. Is it simply because of the passage of time and the frailty of memory? If so, are the issues important ones which cast doubt particularly on reliability? Or, if the accused's position is correct that he did none of these things as he told the police and as you have heard he told the police when he attended voluntarily at police headquarters to be questioned about these allegations, is there some sort of distorted childhood fantasy which each woman is now describing or have each of them got some reason to get at the accused?......

Where, as here, there are aspects of each of the statements of [the first complainer] and [the second complainer] which are consistent with what the witnesses said in court and there are aspects which are inconsistent with what the witnesses said in court, you have to decide whether the net effect of the statement by each witness separately is one which enhances or detracts from their credibility and reliability. In the case of [the first complainer], she seemed to have said to Constable Wilkie at Arbroath that there were many more episodes than she now seemed to be able to recall and that it went on for months and not merely twice although the details of what happened and where appeared to be consistent but these are matters for you and not me. With [the second complainer's] statement you have the further complication, apart from the number of incidents and whether or not it started on a Friday or Saturday and whether or not she screamed or merely tried to scream without success, you have to consider whether she did indeed make a statement, the contents of which suggested to Constable Wilkinson that all the events occurred in the one location which she, Constable Wilkinson, deduced rightly or wrongly was Thornton Road or whether in fact Constable Wilkinson misled herself on that point".

The parties' submissions

On behalf of the appellant, it was submitted that the conviction should be quashed. The defence was based on discrepancies between the complainers' evidence and their previous statements. Although discrepancies had been put to the complainers which might be regarded as more striking than those which the sheriff had disallowed, it was the cumulative effect of all the discrepancies which was important. In the context of a case where the charges concerned events in the distant past, where the Crown had the bare minimum of witnesses needed to obtain a sufficiency of evidence, and where the jury had returned a majority verdict, any matter of materiality would have been important to their consideration of the defence.

On behalf of the Crown, it was submitted that the restriction on questioning which had been imposed by the sheriff, set in the context of the matters which had been explored in cross-examination, was not of such materiality as to have resulted in a miscarriage of justice. Matters which appeared objectively to be of much greater significance had been the subject of cross-examination. The sheriff had given careful and accurate directions to the jury in respect of those matters. The jury could have been in no doubt that the issue they had to decide was the credibility and reliability of the complainers. It had been made plain to them that there were material discrepancies between the complainers' evidence and accounts they had earlier given. The material which was not before the jury, although relevant, added nothing of real significance.

Discussion

It is not in dispute that counsel for the appellant was restricted in his cross-examination of the complainers as a result of an erroneous decision by the sheriff, and that in consequence the jury did not have an opportunity to consider certain prior statements which were relevant to their assessment of the complainers' credibility and reliability. This appeal is based on the contention that there has in consequence been a miscarriage of justice within the meaning of section 106 of the 1995 Act, and that the verdict of the jury should therefore be set aside. Neither counsel for the respondent nor the advocate-depute attempted however to analyse the approach which this court should adopt, in determining whether there has been a miscarriage of justice, or referred to any authority.

It would not be appropriate for us to embark upon a detailed discussion of the matter in the absence of argument. For the purposes of the present appeal, we are content to follow the approach adopted in analogous circumstances in Hogg v Clark 1959 J.C.7. In that case, where a sheriff had erroneously refused to allow a document to be put to a Crown witness in cross-examination, the Court asked itself (at page 10, per Lord Justice-General Clyde):

"Can we say that the exclusion of the cross-examination in question might not possibly have affected the conclusion arrived at by the Sheriff-substitute? For it is only if we can negative that possibility that this conviction can stand. That is the test laid down by Lord McLaren and Lord Wellwood in Falconer v Brown (1893) 21R (J) 1 at pp. 3-4 and adopted by the Lord Justice-Clerk (Alness) in Winning v Torrance 1928 J.C.79 at p.83. To maintain a conviction, in the light of that test, a very heavy onus rests upon the Crown".

We need not decide whether that test, adopted in relation to the proviso to section 2(1) of the Criminal Appeal (Scotland) Act 1926, is also relevant, in circumstances such as those of the present case, to the application of section 106 of the 1995 Act. We are content to apply it in the present appeal because, on any view, the appropriate test under section 106 cannot be one which is more favourable to the appellant.

Approaching the matter in that way, we have to assess the significance of the previous statements which were not put in cross-examination in the context of the evidence led at the trial, having regard to the crucial issues at the trial, and bearing in mind the directions given to the jury. We carry out that assessment in the light of the collective experience of the members of this Court as trial judges in cases of this nature. The question which we have to consider is not whether evidence in relation to the statements in issue would have been relevant and admissible: that much is not in dispute. The question, essentially, is whether such evidence could have had such a bearing upon a reasonable jury's determination of the credibility and reliability of the complainer's evidence as to have affected the conclusion which they arrived at.

In the case of the first complainer, the jury were aware of differences between her evidence at the trial and the account which she had given in her police statement. Those differences related to matters which were of some materiality, namely the number of occasions when she had been abused and the period of time over which the abuse had taken place. The jury were specifically reminded of those differences by the sheriff, and were directed to pay careful attention to them when considering the first complainer's credibility and reliability. The jury nevertheless concluded that the first complainer was doing her best to tell the truth, and was credible and reliable on the essential matters: namely, that she had been sexually abused by the appellant when she was a young child, as she described. In that context, it appears to us that there is no real possibility that their conclusion would have been affected if the first complainer had in addition been cross-examined in relation to the evidence she had given at the previous trial diet concerning her grandfather's funeral. That evidence was somewhat confused, and its exploration in detail was liable to have led to further confusion. The first complainer's final position was however the same as her initial position, namely that she could not remember that the occasion when her parents went away to the funeral was one of the occasions when she had been abused. That was also the evidence which she gave to the jury at the second trial. This appears to us to have been a matter of minimal significance.

In the case of the second complainer, the jury were again aware of differences between her evidence at the trial and the account which she had given to the police. Again, the differences concerned matters which might have been considered by a jury to be of some materiality. The jury were reminded of the differences by the sheriff and directed to pay careful attention to them. The jury nevertheless concluded that the second complainer was a credible and reliable witness as to the essentials of the charge. The passage in her statement which was not put to her, to the effect that the appellant had forgotten where the coffee and sugar were kept in her house following one of the incidents of abuse, was not inconsistent with her evidence at the trial that he had asked her, as usual, if she wanted her supper "as if everything was back to normal". It is impossible to speculate as to what she would have said if she had been reminded of her earlier statement. There does not however appear to us to be any real possibility that the introduction of that additional material would have affected the jury's assessment of her credibility and reliability on the essentials of the charge.

Conclusion

In these circumstances, the appeal must be refused.