Her Majesty’s Advocate v. J.R.D. [2015] HCJ 85

Oppression:- On 1 October 2015, at Edinburgh High Court, the appellant went to trial on three charges:- (1) historic lewd, indecent and libidinous practices and behaviour towards CD, his niece, at 66 M Street, 2/2, 575 S Street and 11 D Street, Glasgow; (2) historic repeated rape of CD at 11 D Street, Glasgow; and (3) historic lewd, indecent and libidinous practices and behaviour towards ADN, his niece, at 2/2, 575 S Street, Glasgow. CD gave evidence at trial and spoke to two instances of rape by the accused at D Street and said that she could not recall any other sexual abuse by him at D Street. In the course of cross‑examination CD stated that everything that happened to her happened at D Street. A police statement was put to her in which she accepted she had said that the accused had done things to her at 66 M Street. In evidence she went on to clarify that it was her grandfather and not the accused who had done things to her at 66 M Street. CD was unable to explain why she had told the police that the accused had done things to her at 66 M Street. In re-examination CD confirmed that nothing was done to her by the accused at 66 M Street and the abuse took place at D Street. Following CD’s evidence the trial judge asked the Advocate depute if CD’s position in relation to nothing having happened to her at M Street and S Street came as a surprise and the Advocate depute indicated that it had not come as a surprise as at precognition CD had also indicated that it was ‘only’ at D Street where the accused had abused her. The report from the procurator fiscal to Crown Office included draft charges relating to the abuse of CD at D Street only, however, when the case was indicted reference was made in charge one to M Street, S Street and D Street. The trial judge took the view that the Crown ,in drafting an indictment which included serious allegations in charge 1 for which there was no evidential basis, was “unconscionable, reprehensible and indefensible conduct on their part.” On behalf of the accused counsel submitted that such serious prejudice had been suffered by the accused by the inclusion of the unfounded allegations in charge 1 having been read to the jury that it amounted to oppression by the Crown and the court should desert the indictment simpliciter. On behalf of the Crown it was conceded, in general terms, that it was oppressive for the Crown to include allegations for which there was no evidential foundation in an indictment, however, in the present case there had not been oppression sufficient enough for the trial to be deserted simpliciter. Here the court applied the test for oppression, namely, whether the prejudice was so grave as to be incapable of being removed by an appropriate direction to the jury or by other action on the part of the trial judge, so as to give the accused a fair trial. Here the trial judge considered that there had been oppression on the part of the Crown and that it was inexplicable conduct which created oppression which could not be cured by any direction from the trial judge and resulted in an unfair trial for the accused. The trial judge considered that the conduct of the Crown was so serious that it was fatal to the prosecution and he decided to desert the indictment simpliciter, citing the nature of the oppression, the fact that the charges related to alleged conduct over 40 years ago and that the accused first appeared on petition back on 6 May 2014.