Her Majesty’s Advocate v. Sean Moynihan [2018] HCJAC 43

Crown appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The respondent was indicted to the High Court on a charge of attempted rape relating to a 15 year old girl in Paisley in 2008. Attached to the indictment was a docket in which it was stated that the Crown intended to lead evidence of a rape of a 16 year old girl in Paisley in May 2008 for which the respondent was convicted following trial in 2009. A minute objecting to the admissibility of the evidence referred to in the docket was lodged. At a preliminary hearing the objection to the admissibility of the evidence was sustained, the preliminary hearing judge stating that:- (1) section 288BA of the Criminal Procedure (Scotland) Act 1995 does not permit the leading of evidence relating to charge in respect of which an accused had already been convicted; and (2) the leading of such evidence would constitute a breach of section 101(1) of the 1995 Act relating to the previous convictions not being laid before the jury. The Crown appealed against the preliminary hearing judge’s decision. It was submitted on behalf of the Crown that the evidence was admissible. It was submitted that care would require to be taken when leading the evidence to ensure that no prejudice arose. In relation to section 101 it was submitted on behalf of the Crown that they did not seek to lead evidence that the respondent was convicted, rather it was their intention to lead evidence of the act referred to in the docket as supporting the conclusion that the respondent was guilty of the charge libelled on the current indictment. On behalf of the respondent it was conceded that the evidence in question was relevant, that fair notice had been given and that leading of the evidence was not expressly prohibited by the terms of the statute. It was submitted, however, that a prohibition should be read into section 288BA, particularly when considering the terms of section 101. There would be a danger of the jury assessing the evidence of the witness to the docket and there was a risk of various practical difficulties at the trial as described by the preliminary hearing judge. Here the court allowed the appeal. The court considered that the preliminary hearing judge had erred in deciding that the evidence which the Crown seek to lead in respect of the docket would be inadmissible. The court provided a number of examples of circumstances where the Crown could aver previous criminal conduct not in a charge, for example, where the prosecution was time-barred, where the evidence related to conduct outwith the jurisdiction or where the Crown had previously renounced the right to prosecute and was personally barred from proceeding with a charge. The court noted that section 288BA of the 1995 Act is framed in the widest possible terms. What is to be led before the jury is not evidence of a specific conviction but, rather, evidence which formed only part of the basis for a conviction and it was not intended that the fact of conviction would be made known to the jury. The court considered that there is no logical basis for treating evidence which relates to a matter which could not competently be formulated as a charge, being already the subject of a conviction, differently from circumstances where a charge would be incompetent for other reasons. The court considered that there is no logical basis for allowing evidence of an act which, by being time barred, could never amount to more than an allegation, but refusing to admit evidence of an act which has been established by corroborated evidence. It was the Crown’s intention no to seek to rely upon the fact of the conviction but, rather, to rely on the evidence of the complainer in respect of the acts referred in the docket to support the substantive charge. In relation to the concerns raised by the preliminary hearing judge and the issues that might arise the court considered that all the jury would need to be told is that the docket was not a charge, that they would not need to return a verdict on it and that the purpose of it was to give notice that evidence of the matters referred to in it may be led. In relation to issues relating to the presumption of innocence that only relates to charges on the indictment and all the jury has to be satisfied of in relation to the evidence relating to the docket is whether the witness should be treated as credible and reliable. In relation to the section 101 issue the court considered that there was no reason why the jury would suspect that the appellant had already been convicted of the docket matter. The court considered that the trial judge would be able to formulate appropriate directions to deal with the issues rising.