David Glass v. Her Majesty’s Advocate [2018] HCJAC 70

Note of appeal against conviction and sentence:- On 7 December 2017, at Dundee Sheriff Court, the appellant was convicted after trial of four charges of using lewd, indecent and libidinous practices and behaviour:- (1) charge 2 related to conduct occurring between 1987 and 1989 in a caravan at Crail involving WW, a 3 or 4 year old boy; (2) charge 3 related to conduct occurring between 1987 and 1989 in a caravan at Crail involving SW (WW’s brother), a 5 or 6 year old boy who had died by the time of the trial; (3) charge 4 related to conduct occurring between 1994 and 1996 in Anstruther involving JM, a boy aged 9-11; and (4) charge 5 related to conduct occurring between 1994 and 1996 in Cellardyke involving JM. At the trial WW spoke to the events in charges 2 and 3 when the appellant had been baby sitting. Evidence was heard that the appellant was careful to ensure that WW and SW slept in one room, whilst their older brother, DW, slept in another. SW was deceased by the date of the trial. JM spoke to the events in charges 4 and 5 which also occurred when the appellant had been baby-sitting. The appellant did not give evidence and had provided a “no comment” interview to the police. The position advanced in cross-examination of WW and JM was that they had made up the allegations against the appellant and had colluded as adults. Prior to the trial the Crown lodged a notice under section 259 of the Criminal Procedure (Scotland) Act 1995 seeking to adduce the evidence of a statement made by DW (the complainer in charge 1 re an allegation of using lewd, indecent and libidinous practices and behaviour between 1986 and 1989 at the same caravan as that referred to in charges 2 and 3) to a police officer on 20 February 2014. The Crown stated that DW was unfit and unable to give evidence in any competent manner by reason of a mental condition, namely, permanent memory loss as result of a road traffic accident on 20 February 2017. A report from a consultant in rehabilitation medicine dated 5 November 2017 stated that DW’s “inability to remember giving a statement and certain previous events is entirely attributable to the extent of the traumatic brain injury” was “entirely probable”. The application was opposed by the appellant on the basis that the relevant part of section 259(2) only applied when a witness was unfit or unable to give evidence and DW could give evidence albeit he was apparently unable to remember events. The sheriff granted the application stating he was satisfied that as a result of his mental condition DW would be unable to give evidence in any competent manner. A no case to answer submission was made at the close of the Crown case it being contended that the section 259 hearsay statement had been the “sole and decisive” evidence in relation to charge 1. It appears that the fiscal withdrew the charge after the trial sheriff indicated to the fiscal that giving directions to the jury on the issue would be overly complex. The fiscal made reference to the contents of DW’s statement in the Crown speech to the jury inviting the jury to hold that DW’s statement supported parts of WW’s evidence including that the brothers had stayed overnight in the appellant’s caravan and that WW and SW had slept in a different bedroom to DW. The sheriff gave the jury directions in relation to how to approach the hearsay statement of DW. In relation to corroboration the sheriff gave the jury the standard directions on mutual corroboration and directed them that they would need to find that both WW and JM were credible and reliable witnesses before they could convict. The appellant was subsequently convicted and the sheriff imposed an extended sentence of 6 years comprising of a custodial element of 5 years and an extension period of one year. The appellant appealed against his conviction and sentence it being contended that the sheriff erred in admitting the written statement under section 259, in particular, it was submitted that the phrase “in any competent manner” referred to the means of giving evidence (eg in court or on commission) and not to the competency of the witness. It was further submitted that there was no reason why DW could not have attended court and been asked questions and the use of such statements under section 259 should be restricted to situations when it was necessary and section 260 provided for the adoption of a statement. It was submitted on behalf of the appellant that “unable to give evidence” meant unable to give evidence at all and the admission of the hearsay statement under section 259 had resulted in a miscarriage of justice as the Crown had relied upon the contents of the hearsay statement of DW to bolster the credibility ad reliability of WW. In relation to the appeal against sentence it was submitted that the sentence was excessive. In particular, the previous sentence for analogous offences of 3 years and 10 months had been imposed in August 2014 and related to matters after those in the present case. On behalf of the Crown it was submitted that section 259 enacted to admit exceptions to the prohibition on hearsay in circumstances other than when the witness was dead albeit in the present case it was conceded that the contents of the medical report had been insufficient to merit the grant of the application and the witness could have given evidence and the prior statement could have been put to him under section 260 of the 1995 Act. Notwithstanding that, however, it was submitted that no miscarriage of justice had occurred and even if the statement had been excluded there had been no real possibility of a different verdict given the limited reliance that had been placed on the contents of the hearsay statement. In addition, the trial sheriff had given the jury clear directions that they would need to find both WW and JM credible and reliable before they could convict the appellant. Here the court refused the appeal. The court considered the terms of section 259 of the 1995 Act and noted that the provision referred to was aimed at witnesses who cannot give evidence as a generality because of their mental condition whereas in the present case DW was able to give evidence about the “matter” referred to in the statement. The court considered that section 259 was not enacted to deal with situations like the present, but, rather, it is for witnesses who cannot, or will not, give evidence because they are dead, cannot be compelled to attend, cannot be traced or have refused to testify. The court considered that the appropriate means of securing DW’s evidence would have been to seek to invoke section 260 of the 1995 Act and whether DW would adopt the signed statement which he had previously given to the police. The court also agreed with the Crown concession that the medical report provided was insufficient for the granting of the application. The court went on to hold that no miscarriage of justice had occurred. In relation to the withdrawal of charge 1 by the Fiscal the court observed that it was not clear what had occurred at the close of the Crown case as, whilst it was recorded that the no case to answer submission was upheld, there was no minute that the appellant had been formally acquitted. In relation to the merits of the no case to answer submission the court here was of the view that if the submission was upheld on the basis of the hearsay evidence being sole and decisive in relation to charge 1 the sheriff would have been in error in so holding having regard to his brother, WW’s evidence on charges 2 and 3, which was available as mutual corroboration. The court here was of the view that the direction from the sheriff that to convict the appellant that the only mutual corroboration available was from the two complainers WW and JM was wrong, however, it was in favour of the appellant. In making it clear to the jury that to convict the appellant they had to accept the evidence of WW and JM then they must have done so and, as such, the impact DW’s statement had, particularly given its limited content, was minimal. In relation to the appeal against sentence the court allowed the appeal. The court considered that the extended sentence imposed was incompetent given the age of the offences and quashed the sentence and in substituting a sentence of imprisonment reduced the custodial element of the sentence from 5 years to 3 years imprisonment.