Michael Whorlton v. Her Majesty’s Advocate [2020] HCJAC 36

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Note of appeal against conviction:- The appellant was indicted, proceeded to trial and was convicted at the High Court of inter alia a charge of rape (charge 22). During the trial objection was taken on behalf of the appellant to the Crown leading evidence from two witnesses about the complainer telling them what had happened. The objections were repelled, the evidence was taken and the appellant was subsequently convicted and appealed against his conviction. It was contended on his behalf that as the evidence was not de recenti then the evidence ought to have been excluded as inadmissible hearsay and the leading of the evidence resulted in a miscarriage of justice. The circumstances were that evidence was led of the police taking a first statement from the complainer in 2018 four years after the alleged rape. She initially said in her statement that nothing untoward of a sexual nature had occurred but later she mentioned that she had been raped by the appellant in 2014. It had been put to the complainer in cross-examination that she did not speak to the police about the rape until 2018 and only when the police came to speak to her. The judge at first instance considered that fairness required the Crown to lead the evidence from the two witnesses and also having regard to the provisions of section 288DA of the Criminal Procedure (Scotland) Act 1995 and the issue of jury directions in relation to delayed disclosure. Here it was submitted on behalf of the appellant that the purpose of the cross-examination of the complainer was limited to exploring the terms of the first statement and that she only spoke to the police about the allegation when they approached her in 2018. Here the court refused the appeal. The court considered that whilst the cross-examination did focus on the inconsistency within the statement the issue of delayed disclosure was also raised with a view to challenging the complainer’s credibility and reliability. As such, the court considered that the judge was correct to hold that the Crown were entitled to lead the rebuttal evidence from the two witnesses. The court considered that whilst the evidence led was not de recenti it was nevertheless admissible on the basis that it was primary hearsay as the fact that it was said was relevant to an issue in the case, namely, to show that the complainer had made earlier reports of the rape to the two witnesses, not that the reports themselves were true. The court noted that the limited extent to which the primary hearsay could be used was included in the trial judge’s directions to the jury when he directed them that the two witnesses’ evidence was available to negate any suggestion that the complainer first made the allegation when she spoke to the police in 2018 but their evidence could not be used to go towards proof of the events spoken to by the complainer.

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