Ryan Graham v. Her Majesty’s Advocate [2018] HCJAC 69

Note of appeal against conviction and sentence:- On 10 October 2017, following a trial on indictment at the high court, the appellant was convicted of three charges:- (a) a charge of penetrating sexually his then partner (now deceased) to her injury contrary to Section 2 of the Sexual Offences (Scotland) Act 2009 (charge 1); (b) a charge of assaulting the same complainer to her injury (charge 2); and (c) a charge of raping the same complainer to her injury contrary to Section 1 of the Sexual Offences (Scotland) Act 2009 (charge 5). The appellant was sentenced to 3 years imprisonment in relation to charge 1, 18 months for charge 2 and 7 years for charge 5, to be served consecutively. The appellant appealed against his conviction on the grounds that the statement made by the complainer, who committed suicide before the trial, should not have been allowed to be admitted in terms of section 259 of the Criminal Procedure (Scotland) Act 1995. It was contended on behalf of the appellant that the statements of the complainer were sole and decisive evidence against the appellant in relation to charges 1 and 5 and there were insufficient procedural safeguards to ensure the appellant had a fair trial and the trial judge should have sustained the compatibility issue minute which had been lodged on the appellant’s behalf. Reference was made to Al-Khawaja v UK (2012) 54 EHRR 23. In relation to charge 5 it was accepted that there was a sufficiency of evidence. The circumstances were that the Crown had applied to the court for various statements made by the complainer to be admitted under section 259(5) of the 1995 Act including:- (a) a recording and transcript of a 999 call made on 8 March 2017 (prod 20); (b) a statement made to PC O’Hanlon at about 0550 on 8 March 2017, contained in an affidavit from that officer, and spoken to in evidence by him; (c) a statement made to police officers at 0720 on 8 March 2017 (prod 7); (d) a statement made to police officers on 8 March 2017 at 0935 hrs (prod 22); (e) a statement made to police officers on 9 March 2017 (prod 23); (f) a recording and transcript of a 999 call made on 10 March 2017 (prod 21); and (g) a statement made to police officers dated 10 March 2017 (prod 8). There was other evidence available to the Crown in relation to charges 1 and 5 including forensic evidence, medical evidence, evidence of distress and testimony of other witnesses. Prior to the appeal hearing the Crown had lodged a case and argument in which it was conceded that the evidence in question had been sole and decisive and the only issue at the appeal was whether the counterbalancing safeguards were sufficient. During the course of the appeal hearing, however, the Crown sought to withdraw the concession in relation to charge 5. It was submitted on behalf of the appellant that the evidence of the complainer could not be directly tested by the appellant at trial and the refusal of the compatibility minute had resulted in an unfair trial and a miscarriage of justice. It was submitted that the Crown concession that the evidence of the complainer’s statements in relation to charges 1 and 5 being sole and decisive was properly made as in the event that the statements were removed from the evidence there would be insufficient evidence to convict and, as such, the evidence was sole and decisive. In these circumstances it was submitted the court had to consider whether there were adequate procedural safeguards to allow the complainer’s evidence to be tested by the jury and in the present case, in relation to charges 1 and 5, there were not. On behalf of the Crown it was submitted that three questions arose when hearsay evidence was admitted from an absent witness:- (1) Was there a good reason for the non-attendance of the witness? No issue arose in light of the witness being dead; (2) If so, was the hearsay evidence “sole or decisive”? It was submitted by the Crown that in relation to charge 1 it was; and (3) If so, were there adequate counterbalancing measures, including the existence of strong procedural safeguards, which permitted a fair and proper assessment of the reliability of that evidence to take place? It was submitted on behalf of the Crown that in relation to charge 1 there were adequate safeguards available, in particular:- (a) the requirement for corroboration of the essential facts of each charge; and (b) the giving of appropriate directions to the jury about the dangers of uncritically accepting hearsay evidence of the complainer’s account. Here the court refused the appeal. The court stated that simply because the hearsay evidence may provide the underlying foundation for the charge does not however mean that it must necessarily be the decisive evidence. The court went on to state that it is necessary to examine the circumstances to see whether there is any supporting evidence and to assess it not in terms of sufficiency but in relation to the extent it adds to the reliability and persuasiveness of the hearsay evidence in question. The court considered that the approach in the submissions of both the appellant and the Crown that the hearsay evidence should be removed from the picture to assess the sole or decisive nature of it was incorrect. The court was willing to proceed on the basis of the Crown concession having been properly made in relation to charge 1. In relation to charge 5, however, the court considered that the Crown were correct to withdraw the concession and that the hearsay statement could not be described as sole or decisive having regard to DNA evidence, the clear distress observed by police officers within a short time of the original 999 call, the fact that the appellant was subject to bail conditions from only two days previously not to contact the complainer, and the fact that he was arrested less than 10 minutes after the 999 call, close to the locus. Given that the court was willing to proceed on the basis that the hearsay statement in relation to charge 1 was sole and decisive the court went on to consider that there were adequate procedural safeguards available, in particular, the majority of the statements had been signed by the complainer before she had died; the directions of the trial judge to the jury regarding the care they should approach the hearsay evidence; the requirement for corroboration; the opportunity for the appellant to place his account before the jury; and the opportunity to challenge the credibility and reliability of the hearsay evidence. The court observed that whilst the issue did not arise in relation to charge 5 if it had the court would have reached the same conclusion for similar reasons albeit the corroboration was stronger. In relation to the appeal against sentence it was submitted on behalf of the appellant that the sentence was excessive in that he had no analogous previous convictions, their relationship had been volatile and the complainer had previously attempted suicide and her death was not connected to the present indictment. Here the court also refused the appeal against sentence. The court observed that charge 5 was aggravated by its proximity in time to charges 1 and 2 and his motivation had been to punish the complainer.