Gavin Watson MacDonald v. Her Majesty’s Advocate [2020] HCJAC 21

Note of appeal against conviction:- On 5 September 2019, following a trial on indictment at Livingston Sheriff Court, the appellant was convicted of a contravention of sections 2 and 3 of the Sexual Offences (Scotland) Act 2009. The jury deleted from the charge the reference to the assault being committed with intent to rape. On 26 September 2019, following the obtaining of a Criminal Justice Social Work Report, the appellant, who was aged 52 years, was sentenced to 27 months imprisonment. The appellant appealed against his conviction on the ground that the trial sheriff by his repeated reference to the complainer as being a “victim” during his charge to the jury resulted in a miscarriage of justice. In relation to the single ground of appeal it was submitted on behalf of the appellant that, having regard to what was said by the court in the case of Wishart v HMA 2014 SCCR 130, the references to the complainer as a victim were crucial directions which were prejudicial to the appellant and had caused a miscarriage of justice. On behalf of the Crown it was submitted that the word ‘complainer’ had been used more than the word ‘victim’ in the sheriff’s charge and any time the word ‘victim’ had been used was a slip and when one examined the charge as a whole it was clear that any such reference could not be construed as any implicit comment on the credibility of the complainer’s evidence. The court refused the appeal. The court noted that the complainer’s full name was referred to by the sheriff on 11 occasions, the word ‘complainer’ on 29 occasions, together with reference to ‘alleged victim’ and ‘victim’. The court stated here that reference to the ‘victim’ should not have occurred, however, the use of the term in the trial amounted to slips of the tongue rather than any comment on the credibility of the complainer’s evidence. The appeal caused the court to make a number of observations and raise concerns in relation to various aspects of how the trial, and previous procedure in the case, were conducted by those involved. The court observed that a section 275 application was granted in the case, without opposition from the Crown and without proper judicial scrutiny as to its contents. In addition, there were criticisms of what was put to the complainer in cross-examination and to references in the defence speech to the jury about the “accused’s position” vis a vis consent in the absence of any evidence led in support of such a position (reference being made to the case of Bakhjam v HMA 2018 JC 127). In addition, there were criticisms made of the trial sheriff in failing to properly control proceedings, particularly in light of the unwarranted attack on the complainer during the course of cross-examination. The court invited parties to answer a number of questions raised by the court in relation to various aspects of the pre-trial and trial procedure and the conduct of the proceedings as a whole. The court considered that the section 275 application ought to have been opposed by the Crown (as was conceded by the Crown at the appeal hearing). The court reiterated that section 275 applications must be properly administered and determined. In relation to the inadmissible evidence that was led at the trial the court stated at paragraph 40:- “…It is most unfortunate that a complainer in a sexual offences trial should have been subject to such questioning. It is not at all surprising that she was distressed as a result.” The court noted there was no evidence in support of the special defence of consent and it ought to have been withdrawn and that reference to inadmissible hearsay ought also to have been excluded. Further the court considered that the trial sheriff ought to have given the jury a direction that there can be good reasons why a complainer might not resist and that an absence of resistance does not necessarily indicate that the allegation was false under section 288DB of the 1995 Act.