A.S. v. Her Majesty’s Advocate [2020] HCJAC 42

Note of appeal against conviction:- On 11 November 2019, at Edinburgh High Court, the appellant was convicted after trial of:- (a) the indecent assault of his sister, AB; (b) the attempted rape of his sister; (3) the rape of his sister; and (d) an indecent assault on a male cousin, CD. By the time of the trial CD had died and the Crown relied upon a statement he had given to the police to prove the charge relating to him and the charges relating to AB by the application of the doctrine of mutual corroboration. The appellant appealed against his conviction it being contended that the appellant’s trial had been rendered unfair in terms of Article 6 of ECHR on the basis that the hearsay statement led by the Crown under section 259 of the Criminal Procedure (Scotland) Act 1995 was decisive and there were insufficient safeguards available to secure the appellant’s Convention rights. At the trial the appellant had lodged a compatibility issue minute contending that the leading of hearsay evidence breached his Article 6 rights. The trial judge repelled the minute on the grounds that the hearsay evidence was not determinative of the prosecution in that there was significant other evidence in addition to CD’s statement to the police. The trial judge highlighted the detailed evidence given by AB who gave evidence of visiting the home of CD with the appellant round the time when CD stated he had been abused. The trial judge considered that AB’s evidence added to the evidential weight of CD’s statement. Separately, the trial judge took the view that even if the hearsay evidence had been regarded as decisive there were sufficient safeguards in place to ensure the fairness of the trial including:- (1) the statement was taken by an experienced police officer and was certified by CD as true and accurate; (2) strong directions should be given to the jury on the limitations and dangers of hearsay evidence; (3) the appellant had the opportunity to lead evidence from himself and other defence witnesses to rebut the content of the statement; and (4) the opportunity for the appellant’s counsel to make submissions to the jury to stress the limitations of CD’s hearsay account. Here it was submitted on behalf of the appellant that the trial judge had erred in holding that the hearsay evidence was not decisive and that, even if it was, that there were adequate safeguards available. It was submitted that, unlike in Graham v HMA 2019 JC 26 where there was a significant body of evidence that directly supported the hearsay testimony, in the present case there was no evidence directly supporting the credibility of the hearsay statement. In addition, the statement was provided 40 years after the event and there was nothing to support his evidence, for example, de recenti distress or injury. On behalf of the Crown it was submitted that the trial judge had not erred in repelling the compatibility minute. It was submitted a three stage test applied:- (1) whether there was good reason for the non-attendance of the witness to which the hearsay related and in the present case there was as he was dead; (2) determining whether the hearsay was the sole or decisive evidence against the appellant which assessment would depend on the strength of the supporting evidence and in the present case the evidence of AB was of significance due to a temporal connection; and (3) whether, if the hearsay was decisive, there were sufficient procedural safeguards which ensured a fair trial could take place including the circumstances of the statement, the directions to the jury, corroboration, the directions to the jury and he opportunity for the defence to lead evidence and make submissions to the jury. Here the court refused the appeal. In relation to the three factors:- (a) there was a good reason for the non- attendance of the witness; (b) the hearsay was the sole or decisive basis for the conviction; and (c) there were sufficient strong procedural safeguards, the court considered that these 3 factors are inter-related and should not be looked at in any set order. The court stated that even where it is not clear whether the hearsay was the sole or decisive evidence, the court still requires to examine whether there were sufficient counterbalancing factors available for the trial to be fair. The court stated that the more important the evidence then the more weight the procedural safeguards will require to carry. In relation to the question of whether the evidence is sole and decisive that should be narrowly interpreted as meaning evidence of such significance or importance as is likely to be determinative of the outcome of the case and the court considered that CD’s evidence was not determinative of charges 1 to 3 as corroboration is not a requirement of the European Convention and the appeal was almost bound to fail re charges 1-3. The court went on to consider the overall fairness of the trial having regard to the procedural safeguards available. The court considered that there were sufficient procedural safeguards available as identified by the trial judge. The court considered that there was no potential unfairness in relation to charges 1 to 3. In relation to charge 4 the court recognised the hearsay statement was important, however, having examined the counterbalancing safeguards available the court considered that the safeguards were sufficient to ensure that the appellant had a fair trial.