Angus Francis v. Her Majesty’s Advocate [2017] HCJAC 63

Note of appeal against conviction:- On 5 September 2016, at Oban Sheriff Court, the appellant was convicted after trial on indictment of two contraventions of section 28 of the Sexual Offences (Scotland) Act 2009, namely, penetrating sexually with his penis the vagina of LG a child who had not attained the age of 16 years (charges 3 and 4). The appellant was acquitted of a further section 28 charge against the same complainer alleged to have taken place during the period of the libel in charge 3. Charge 1 was withdrawn by the Crown which was a contravention of section 5(3) of the Criminal Law (Consolidation)(Scotland) Act 1995, namely, under age sex, with a different complainer, prior to the coming into effect of the Sexual Offences (Scotland) Act 2009. Following the obtaining of a Criminal Justice Social Work Report the trial sheriff sentenced the appellant to an extended sentence of 4 1⁄2 years made up by a custodial element of 18 months and an extension period of 3 years. The appellant appealed against his conviction on the grounds that the trial sheriff erred in refusing to allow the defence a further opportunity to cross-examine on something referred to by the fiscal depute in re-examination. The circumstances were that in advance of trial a defence statement was lodged on behalf of the appellant that stated that in relation to charge 1 the appellant relied upon a special defence of alibi and in relation to charges 2, 3 and 4 his position was that he reasonably believed that LG had attained the age of 16. At the trial the complainer, LG, was cross-examined on behalf of the appellant when the position put was that although there had been a single incident of sexual behaviour involving the appellant and the complainer when she had been under 16 the conduct in charge 4 which libelled repeated sexual intercourse over a period of almost a year was denied completely. The fiscal depute considered that position was contrary to the appellant’s stated position in the defence statement in that he understood the only issue in relation to charges 2-4 was the appellant’s belief regarding the complainer’s age and his examination-in-chief was framed on that basis. The fiscal depute then sought to refer to the complainer’s medical records in re-examination. That was objected to on behalf of the appellant on the basis that reference to the medical records had not arise in cross-examination and, if allowed, the appellant would not have the opportunity to cross-examine the complainer on the records. The sheriff inquired how any such reference could be made by the appellant to the entries he wished to refer to in the absence of a section 275 application to which it was submitted on behalf of the appellant that any application could be made orally. The sheriff allowed the depute to re-examine with reference to the medical records and he asked the complainer if the sexual contact related to a single incident when she had been 14 to which the complainer stated it has been repeated sexual contact between the ages of 14 and 16. The depute asked the complainer about certain entries in the records which related to issues arising from sexual intercourse. There were two references in 2012 to the complainer having reported “several partners” which the depute did not ask her about. At the end of the re-examination permission was sought on behalf of the appellant to ask further specific questions in re-cross-examination referring to the other sexual partners mentioned in the medical records. The sheriff decided that the depute had restricted his re-examination on issues solely relating to the appellant and the sheriff refused permission to allow further cross-examination. The appellant appealed on the ground that the sheriff erred in refusing to allow further cross-examination on behalf of the appellant. Here it was submitted on behalf of the appellant that the conduct of the depute in only referring to certain parts of the records and not the parts that referred to other sexual partners was oppressive. It was noted by the court that there had been no reference to oppression in the grounds of appeal. Here the court refused the appeal. The court considered that, given the line taken by the defence in the initial cross-examination, namely, that there had not been a prolonged sexual relationship after the one admitted sexual encounter, it was open to the Crown to re-examine the complainer in relation to a continuing sexual relationship which was evidenced by reference to the medical records. Here the court considered that, in the absence of a successful application under section 275, the appellant could not be allowed to cross-examine that there were entries referring to continuing sexual activity with another man or men in the medical records. The court noted that even if such an application had been made on behalf of the appellant, it would have been refused. The court observed that evidence from the complainer that she had had other sexual partners during the period of the libel “had very limited probative value”.