APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Abernethy

Lord Philip

Lord Penrose

[2006] HCJAC 46

XC427/05

OPINION OF THE COURT

delivered by LORD ABERNETHY

APPEAL AGAINST CONVICTION AND SENTENCE

ANDREW CHRISTISON MATTHEW

Appellant

against

HER MAJESTY'S ADVOCATE

Respondent

_____________

Act: J Johnston, QC; Flynn Russo & Co., Arbroath

Alt: B McConnachie, QC, AD; Crown Agent

17 May 2006

[1] Following a trial in the High Court at Edinburgh the appellant was convicted of four charges of lewd, indecent and libidinous practices and behaviour towards three females and one charge of rape of one of the females, S. Two other charges of rape of one of the other females, L, were found not proven.

[2 ] Miss Johnston, senior counsel for the appellant, informed us that the Crown presented the case to the jury as a case for the application of the Moorov doctrine. There was a difference in respect of charge 5, however, the charge of rape of S, in that there was evidence other than that of the complainer, which came from her sister L and was to the effect that she had witnessed the events which were said to amount to rape. There was also evidence from their mother to the effect that S had come into her bedroom some time after the rape was said to have taken place, upset and saying that the appellant had hurt her. In his speech to the jury, the Advocate Depute submitted that that evidence provided some support for S's evidence in the form of a de recenti statement but it was not suggested that it was corroboration for her evidence. In his charge to the jury, however, the trial judge said this:-

"Now, the other way round, that is charge 5, you may feel, again the recollection of the evidence is a matter for you, that there was some or may have been some corroboration directly of [S]'s account of an incident that happened to her and you will recall there is the going into her mother's room and you heard about the potential conflict of the evidence between whether she stayed in the room and so on but that could be corroboration if you accepted that evidence from the mother and you have heard the evidence from [S] (it was accepted that this was a slip of the tongue and a mistake for L), I think about the smell, of sexual conduct going on and the question of the dog barking and so on. Those are independent pieces of evidence which, if you accepted them and accepted that they pointed in favour of [S]'s story, could be regarded as corroboration."

[3 ] In his report, the trial judge explained that passage as follows:-

"At [that passage] I directed the jury that on charge 5 the evidence of [S] could be corroborated by that of her mother, [EM]. It seemed to me that the account given by [S] was one of an incident which only finished when she went in tears to her parents' room and said that her uncle had hurt her. It was properly to be regarded as part of the res gestae. Her mother's evidence corroborated part of it. Separately, it also provided additional support for the corroboration provided by [L], who described the event from the time she was aware that sex was taking place through to her sister leaving the room and complaining to her mother that her uncle had hurt her."

[4 ] Counsel submitted that the matter about which EM gave evidence was not part of the res gestae. The alleged rape had finished by that time. It was not clear how long before that that it had finished but the statement that S made to her mother could be no more than a de recenti statement and could not be corroboration of S's evidence of rape. Reference was made to the case of Bayram Cinci v H M Advocate 2004 S.C.C.R. 267. Accordingly, counsel submitted, this was a misdirection by the trial judge. It concerned an important matter in the trial and it amounted, accordingly, to a miscarriage of justice in respect of charge 5.

[5 ] In response, the Advocate Depute accepted that the direction in question by the trial judge was a misdirection. The statement made by S to her mother was a de recenti statement but could not be corroboration of S's evidence of rape. The Advocate Depute submitted, however, that there had been no miscarriage of justice. This was because there was an eye witness to what was said to have happened, namely, L. Her evidence was sufficient to corroborate S's evidence in relation to this charge. It was difficult to see how the jury could have taken the mother's evidence to be corroborative of S's evidence given the passage earlier in the judge's charge where he had given the jury the definition of rape and directed them as to what was required for rape to be proved. At that stage he had said, inter alia:-

"Now, the crime of rape is committed where a man has sexual intercourse with a woman without her consent, where he has no genuine belief that she was consenting. For a rape to be proved there must be corroborated evidence that satisfies you beyond reasonable doubt that first, that sexual intercourse took place and by that I mean that there was penetration of the vagina ... and that penetration was by the accused's penis."

It was true that the jury had found charge 3, which was a charge alleging rape of L, not proven but it did not follow from that that the jury had rejected the evidence that L gave as to rape of herself, still less that they had rejected her evidence corroborating S's evidence of rape. The Advocate Depute submitted that there was ample corroboration here for charge 5 to be found in L's evidence and that therefore there was no miscarriage of justice.

[6 ] In our opinion the concession by the Advocate Depute that the judge's direction to the effect that the evidence of EM to which we have referred above could be corroboration of S's evidence of rape was a misdirection was correctly given. The incident of which S spoke had finished before she went to her mother's room and told her what had happened. It was therefore not part of the res gestae. It was, of course, a de recenti statement but that was not sufficient for it to provide corroboration for S's evidence of rape. Authority for this is to be found in the case of Bayram Cinci v H M Advocate, supra.

[7 ] Whether this misdirection amounted to a miscarriage of justice is a more difficult question. It is not every misdirection that amounts to a miscarriage of justice. It is important to remember that the question at this stage is whether a miscarriage of justice has in fact occurred. We are not persuaded that the earlier passage in the judge's charge to which the Advocate Depute referred can be given much weight in view of his later direction that the evidence of S's statement to her mother could be corroborative of her own evidence of rape. However, as we understand it, the evidence of L on this matter was strongly corroborative of S's evidence. She had said that at the material time she and S had separate beds in the same room and the appellant was sharing a bed with S. The trial judge in his report then described L's evidence as follows:-

"She said that she heard the appellant doing things to [S]. She said that she could smell it as well, 'the smell that goes with sex'. My notes read: 'He was having sex with her. I never said or did anything. I never let on I was awake. I didn't think of telling mum or dad then.'"

[8 ] As we have said, this evidence was strongly corroborative of S's evidence but with some hesitation we have come to the conclusion in all the circumstances of the case that it cannot be affirmed that the jury did not use S's de recenti statement to her mother as corroboration, which the trial judge had directed them they could do. This is perhaps particularly so given that the jury found the charge of rape of L herself, for reasons which we cannot know, not proven. In our opinion, therefore, the misdirection here did amount to a miscarriage of justice.

[9 ] For these reasons we allowed the appeal against conviction in respect of charge 5 and quashed the conviction on that charge.

[10 ] Following intimation of our decision the Advocate Depute moved the Court to grant authority to bring a new prosecution as provided by section 118(1)(c) of the Criminal Procedure (Scotland) Act 1995. After hearing submissions both from the Advocate Depute and from Miss Johnston, we granted that motion.