Daniel Wilson v. Her Majesty’s Advocate [2021] HCJAC 12

Note of appeal against conviction and sentence:- The appellant faced an indictment containing 9 charges:- (1) indecent and physical assaults on his partner AA; (2) rape of Ms A; (3) indecent and physical assaults on AA: (4) assault on Ms A; (5) indecent assaults on JA, the child of the appellant and Ms A; (6) physical assaults on JA; (7) an assault on both complainers; (8) possession of indecent photographs; and (9) a breach of the peace. Prior to the trial the Crown deserted pro loco et tempore charges (1) to (4) and (8) and (9) on the basis that Ms A was the sole or decisive witness on these charges and that therefore, in the Crown’s view, those charges could not be proceeded with, leaving the appellant facing charges (5) to (7). On 7 November 2019, following a trial at Edinburgh High Court, the appellant was convicted of two charges:- (1) charge 6 - assaulting JA the appellant’s son on various occasions over a 4 year period in the 1990s to his injury; and (2) charge 7 – assaulting AA, the appellant’s partner, over the same period, including “…repeatedly push her on the body [whilst holding JA] towards a cliff edge causing her to slip, and hold them at said cliff edge and repeatedly threaten to push them off, placing them in a state of fear and alarm, and to the danger of their lives.” Charge (5) alleging repeated sexual assaults on JA, was found not proven. On 13 March 2020, following the obtaining of a Criminal Justice Social Work Report the appellant was sentenced to five years imprisonment. In advance of the trial, the Crown lodged an application, under section 259 of the Criminal Procedure (Scotland) Act 1995, to admit as proof of fact seven written statements taken by the police in 2014 from AA a complainer on charge 7 and a witness on charge 6. The trial judge determined, having heard testimony from a consultant psychiatrist and the police officer who had taken the statements, that, in terms of section 259(1) and (2)(b), Ms A was, by reason of her mental condition, unfit or unable to give evidence in any competent manner and ruled her statements were admissible. The appellant’s conviction was based on:- (1) the hearsay statements of Ms A who had given her statements in 2014, 20 years after the alleged conduct; and (2) the testimony of Mr A in 2019 about events which he said he had experienced 21 years or more ago when he was aged less than 4 years. The appellant appealed against his conviction it being contended that as a result of the admission of the statements of Ms A the trial was unfair and breach of the terms of Article 6 because Ms A was a sole or decisive witness and the defence had not had an opportunity to cross-examine her. Furthermore, it was contended that the statements were incomplete. It was submitted on behalf of the appellant that Mr A was aged around 3 years at the material time and a psychologist led in evidence by the defence said that a person’s memory of the first two years of life was lost in adulthood and that, from the ages of three to seven years, there was a tendency for the memory of specific events to be lost even if some memory was retained of that period. A curator ad litem, led in evidence by the defence, who had looked into the circumstances of the appellant and the family during contact proceedings in 2006 and 2007, had reported that Ms A had lied to her about certain matters. She had been of the view that Ms A’s extreme negativity had “fed” Mr A’s “own fearful memories”. It was submitted that the trial judge ought to have sustained a ‘no case to answer’ submission at the close of the Crown case that the appellant could not have a fair trial given that Mr A had become one year old at the start of the period of the libel in charge 6 and the libel in charge 7 started when he was born and the evidence of Ms A was truly sole and decisive as was both the primary and corroborating source of evidence. It was further submitted that the more important the hearsay evidence the more weight the counterbalancing factors had to carry but in the present case these factors could not overcome the unfairness present as a result of there being no opportunity to cross-examine Ms A. A further ground contended that the trial judge erred in refusing a defence motion that the section 259 evidence should not be led in evidence in light of the evidence of the psychologist and the curator ad litem and the likelihood of how little Ms A would have remembered of that stage of her life and that over time Mr A’s mind had bene poisoned against the appellant by his mother. On behalf of the Crown it was submitted that there had been no challenge to the admissibility of Ms A’s statements and that the evidence of Ms A was not the sole and decisive evidence on either of the charges. She supported the evidence of Mr A and the testimony of one complainer could be corroborated by the hearsay of another (S v HMA 2020 SCCR 403). Further, even if the evidence was sole and decisive that did not automatically render the trial unfair there being present sufficient counterbalancing factors including the existence of strong procedural safeguards. Here the court refused the appeal. The court stated that in relation to both charges 6 and 7 the hearsay evidence of Ms A was neither the sole nor the decisive evidence. The court reserved its opinion in relation to the competence of the psychologist giving evidence on the general ability of persons to recall events in very early childhood.