Alan Clark v. Her Majesty’s Advocate [2016] HCJAC 11

Note of appeal against conviction:- On 9 September 2014, at Glasgow High Court, the appellant was convicted after trial of a number of charges relating to violent domestic abuse perpetrated between 1994-2008 against 4 complainers with whom he had previously been involved in relationships with. Two of the complainers made allegations of a sexual nature, namely, AMcK and LMcP. The appellant was convicted of the rape of AMcK between December 2002 and December 2004 (charge 9) and the rape of LMcP between 10 and 12 September 2008 (charge 22) which convictions were wholly dependent upon the application of the Moorov doctrine. The appellant appealed against his conviction in relation to charges 9 and 22 together with charge 21 which was a charge of assault on LMcP. The ground of appeal was directed to criticisms of the trial judge’s directions as they related to the evidence of prior statements by the complainer LMcP. At the trial the credibility and reliability of LMcP was a central issue in that in a handwritten police statement the complainer made no allegation that she had been sexually assaulted. It was conceded by the Crown here that the directions by the trial judge in relation to the prior statements were unusual. The trial judge had directed the jury that similarities between what the witness said to the police and what they said in evidence can bolster the witness’s evidence. On behalf of the appellant it was submitted that it is not admissible to lead evidence of a prior extra judicial consistent statement or statements in order to bolster the witness’ evidence and this was not, for example, a de recenti statement to the first natural confidant or a statement forming part of the res gestae. It was further submitted on behalf of the appellant that the trial judge’s directions in relation to the fact the prior statement was not given under oath and was not subject to cross examination is a direction that is usually reserved for statements made by an accused person. It was submitted, however, that the statement of LMcP was not such a statement and at trial its sole purpose was as a prior hearsay account by the witness inconsistent with the witness’ testimony on oath at trial. The court considered that the fact any such statement was not made on oath and not subject to any cross‑examination was not relevant to the issue of determining the credibility or reliability of the witness’ testimony. It was also submitted that the term used by the trial judge of the witness statement being “prose narrative” was unhelpful and might conflate the statement with an inadmissible precognition. On behalf of the Crown it was submitted that whilst the directions on prior inconsistent statements by a witness were unconventional they did not result in a miscarriage of justice. Here the court allowed the appeal in respect of charges 9, 21 and 22. The court considered that when the trial charge referred to the prior statement by LMcP not being on oath, not being subject to cross‑examination, not being a transcript of an audio recording, and as such being subject to these limitations, the directions introduced issues not relevant to the exercise to be undertaken by the jury in assessing the reliability and credibility of the complainer’s testimony in light of her prior inconsistent position. The court concluded that the misdirections related to a matter central to the defence case, namely, the absence of any reference by LMcP in her police statement to any sexual activity having taken place and the court was unable to say that a miscarriage of justice may not have occurred.