P.R.W. v. Her Majesty’s Advocate [2016] HCJAC 71

Note of appeal against conviction:- In October 2015 the appellant was convicted after trial at the high court of three charges of using lewd, indecent and libidinous practices and behaviour towards two complainers aged between 4 and 7 (AB and DE), the rape of DE and the rape of another child, FG, who was aged between 9 and 10. The offences were committed between 5 August 1987 and 25 April 1999. At the close of the Crown case a charge of using lewd and libidinous practices towards another child, CB, was withdrawn by the Crown. During the course of the trial evidence was led by the Crown from three witnesses (including CB) in relation to previous hearsay statements made by the complainer AB in which she had complained of the appellant’s behaviour towards her. Similar evidence was led from two further witnesses in relation to previous hearsay statements made by FG. No objection was taken on behalf of the appellant at the trial and both the Crown and the defence explored what the complainers had said on these previous occasions. The appellant appealed against his conviction. It was contended on behalf of the appellant that whilst he took the view at the trial that the Crown were entitled to lead the evidence referred to as it was admissible primary hearsay on the basis that it was used to explain the actions of the individuals to whom it had been disclosed, it had been anticipated that appropriate directions would follow. It was submitted that the failure by the trial judge to direct the jury in relation to what use could be made of the evidence amounted to a misdirection. Whilst it was conceded on behalf of the appellant that the hearsay was relevant, for example, to explain the long gap between the dates of the offences and the complaint to the police or as a prior consistent statement of the witness as her evidence was challenged on the basis that it was completely fabricated, the absence of adequate directions amounted to a misdirection which resulted in a miscarriage of justice. In particular, there was a danger that inconsistent aspects of the trial judge’s charge might result in the jury using the hearsay evidence as corroboration. In addition, it was submitted on behalf of the appellant that there was a danger, in the absence of a specific direction to the contrary, that the jury might have used the hearsay evidence to enhance the credibility of the individual complainers. Here the court refused the appeal. The court stated that the trial judge’s directions in relation to corroboration were clear and each complainer’s account could only be corroborated through the application of the doctrine of mutual corroboration. The court did observe that it would have been preferable for the trial judge to include a direction that the hearsay evidence in question could not be used as proof of fact for the purposes of corroboration. In relation to the concern raised on behalf of the appellant that the jury might have used the hearsay evidence to enhance the credibility of the complainers the court considered that in respect of both complainers the evidence could competently have been used for that purpose.