" ... A statement made by an injured party de recenti, unless it can be brought within the rule of res gestae, is ordinarily inadmissible as being hearsay only, but an exception is allowed in the case of sexual assaults upon women and children, including sexual offences against young boys. In cases of that kind the court will allow the evidence of complaints or statements de recenti made by the injured party, for the limited purpose of showing that the conduct of the injured party has been consistent and that the story is not an afterthought, and, in the case of assaults upon women, to negative consent. A complaint de recenti increases the probability that the complaint is true and not concocted, and the absence of complaint where sexual offences are alleged is always a material point for the defence. But it must be clearly affirmed that the evidence is admissible as bearing upon credibility only, and the statements of an injured party, although made de recenti of the commission of a crime, do not in law amount to corroboration ..."

"On 18 June 2006 at Knightswood Park, Glasgow, you did assault AB, born 12 August 1990, c/o Strathclyde Police, City Centre Police Office, Glasgow, seize hold of her, push her to the ground, forcibly remove her trousers, lie on top of her, place your hand over her mouth and did rape her."

"(1) The trial judge misdirected [the] jury on a material issue in regard to the use to which it could put the statement by the complainer, AB. At pages 22-24 of the charge to the jury the learned trial judge directed the jury that it could take account of evidence of a de recenti claim of rape by the complainer, AB, although the complainer in her evidence denied making the statement. Reference is made to MacDonald against Her Majesty's Advocate 2004 S C C R page 100 ...

(3) [That misdirection amounts] to a miscarriage of justice ..."

Circumstances of the offence

"... The complainer, according to her evidence, separated from the others in order to relieve herself. She went down a hill and towards a stand of trees or bushes. It was when she had just finished relieving herself that, according to the complainer, the appellant came up behind her, grabbed her arm, pulled her down, got on top of her and raped her. Thereafter he said 'Let's go' and they then walked together up the hill, re-entered the car and the two girls were driven back to the centre of Glasgow, where they were dropped off. The complainer accepted that the appellant had given her £10 after having sexual intercourse with her, but she was adamant that there had been no previous discussion of sex or money ... "

Evidence relating to a de recenti statement

Pages 44 to 45

Q When you get back up to the car, did you say anything to CD?

A No.

Q About what happened to you?

A No.

Pages 47 to 53

Q And did anything happen when you were in the toilet at the Holiday Inn or did you realise anything at that point?

A Naw, I went into the toilet to clean, to clean myself up.

Q You went in to clean yourself up. And was it at that point you could see something on your underwear?

A Yes.

Q What was it you could see?

A Semen.

Q Semen. And were you able to clean yourself up?

A (Inaudible).

Q And what did you do after you cleaned yourself up, did you stay at the Holiday Inn or did you leave it?

A Naw, we stayed in it for about half an hour.

Q You and CD?

A (Inaudible).

Q At that point did you tell CD what had happened?

A Naw.

Q Or did you discuss it?

A ... she asked me.

Q She asked you?

A Uh huh.

Q If I could cast your mind back, when you were walking out of the ... after this had happened, when did you become aware of CD?

A When I got to the top of the hill.

Q When you got to the top of the hill?

A Aye, CD and that other man was standing at the top of the hill.

Q So CD asked you about what had happened, did you tell CD what had happened?

A I never told her exactly what happened, I just ... she said, "Where were you?" and I says I ... I didnae say, ken, exactly.

Q Right. So she asked you what had happened, but you didn't say, or did she ask where you were, which was it? Did she say what happened or did she say where were you?

A Aye, she was asking me where I was because she was shouting me.

Q She was asking you where you were, but you didn't tell her what had happened to you?

A (Inaudible).

Q Was there a reason why you didn't tell her what had happened to you?

A Because I was embarrassed.

...

Q Did you say anything to the police about what had happened, what Shaban had done to you?

A No.

Q And, again, was there any reason why you wouldn't tell the police?

A Because I just ... I don't know, I was too embarrassed.

Q Again you were too embarrassed.

A And they'd think it was my own fault for running away, ken what I mean.

Q Sorry, did you say you thought the police would think it was your fault as well, because you'd run away?

A Mm hmm.

...

Q When you initially went back to the school did you tell the people in the school what Shaban had done to you?

A No.

Q And I'm afraid I'm going to ask you the same question, was there a reason why you didn't tell the school at that point?

A I was too embarrassed.

Q Just the same reason?

A (Inaudible).

Q And once you'd had your shower, did anything happen, did you go to bed or what happened then?

A Naw, I came out the shower and the staff says, ehm, "CD's told us what happened".

Q Right. You were told that CD had told them what happened?

A (Inaudible).

Q But, forgive me, I thought you hadn't told CD what had happened?

A Naw, but she must have seen something, I don't know.

Q So the ladies and gentlemen understand it, you didn't tell CD what had happened, but you're then told that CD's given information about what had happened?

A Mm hmm.

Pages 129 to 130

Q Did you say anything to CD about what happened?

A Naw.

Q Did she say anything to you?

A Naw.

...

Q Now, you remember you were asked this morning if you told CD what happened and you said that you hadn't told her, and you went on to say she asked you where were you because she was shouting on you; is that right?

A Mm hmm.

Q And you didn't want to tell her what happened at that stage?

A No.

Q But you were with her in a safe place, alone, without these men being there, do you agree with that?

A Mm hmm.

Q If this had happened to you you would have been very distressed; is that right?

A Mm hmm.

Q Upset.

A Mm hmm.

Q This is a girl that you spent some time with at the school; is that right?

A Sometimes, I didnae spend a lot of time with her.

Q But in any event you didn't feel that you wanted to tell her how this terrible thing happened to you?

A No.

Q When she asked you where were you, what did you say to her?

A Nothing, I didn't answer her.

Q You didn't answer her?

A Naw.

Pages 24 to 25

A She never started crying until they went away, and then she telt me what happened to her.

Q Right. And what did she tell you had happened to her?

A She said to me she had been raped.

Q By who?

A By Shaban.

Q She told she had been raped by him?

A Yes.

Q Are you sure about that?

A Yes.

Q And whereabouts did she tell you that?

A Just at the corner as we were walking down. When they'd went away and we couldn't see them, she telt me.

Q And after that, after you got into town, what did you do?

A We walked about for a wee while and then she was just telling ... explaining to me, basically what happened. And I said to her, "We need to go to the police station", so we went to the polis station.

Q Right. Was anything said to the police at that time?

A No.

Q No? And...

A She didn't want me to tell anybody

Q She didn't want you to tell anybody?

A Yes, she was ...

Q And at that time, you didn't tell anyone?

A No.

Page 162

Q Well, is it not really the case that what this boils down to is that AB did not tell you that she was raped ...

A Yes, she did.

Pages 168 to 169

Q When you say that AB told you she'd been raped; that was the truth?

A Yes.

Q And you said earlier, as well, that you saw AB, she was upset from when she came back from ...

A She was ... she was ... she wasn't ... she was not her normal self, like, she was usually happy and cheery and all that, but she wasnae when she came back.

Q And you said earlier that you saw her crying?

A Yeah, that was just ... I dinnae know if it was actually cry ... I think it was maybe anger.

Q Anger?

A Aye, like something in her. I'm not too sure, because she was a bit crabbit as well, and moody.

Q But you thought she was upset?

A Yes.

Q And she told you that Shaban had raped her?

A Yeah. Well, at that time I didnae really, really know his name, so she just said, "He raped me".

Q But when she told you that ... the gentleman who was asking you questions before me ...

A Yeah.

Q ... and he asked you about when she's said that ...

A Mm hmm.

Q ... to you, and you'd said to him that it was when you were walking back to the car?

A Yeah.

Q So, it was very shortly after it happened that she told you?

A Yeah.

"Now, I've given you, as I said, a general rule which is that hearsay cannot be [had] regard to [by a] jury. I have identified one relevant exception. There is, perhaps, another exception which I should draw your attention to. Now, the Advocate Depute [led] evidence from CD about what CD said, ehm, that AB had said very shortly after the events in the park down near the trees. Again it's (inaudible) what CD says that you've to remember that (inaudible) says, but I think I'm right in saying that, according to CD, AB said something about having been raped when they were on their way back to the car and perhaps in the car. Now whether I'm right about that, it, it's not for me to decide, but I think there might have been some evidence (inaudible) AB (inaudible). Now that's what CD says and I think, again if I'm right about the evidence, AB denied having said anything to CD at that stage. However, maybe what you make of the evidence is that it may be you come to the view that very ... very shortly after the events which, whatever it was that occurred in the park, near the trees, AB said to CD something along the lines of her having been raped. Well you can have regard to that as something that the alleged victim has said very shortly after the incident in question and as I say normally that would be inadmissible as hearsay, but in a case like this, because it is a very recent statement, it is admissible, but only for a limited purpose and the limited purpose is whether, or as a tool as it were, to help you decide whether or not AB was telling the truth when she came later to give evidence in, in the witness box. It is not, I have to express this, it is not corroboration because, at the [very] best, assuming that you find that she said anything, at the very best the source of the evidence is still AB, so you can have regard to that piece of evidence if you come to the view that AB did say anything very shortly after the, the events in the park. The principal thing is that that cannot be [corroborative] of what AB later said in court, AB can't corroborate herself, corroboration, defined, is a separate source of evidence".

The trial judge's observations on the ground of appeal

"Ground 1

In this ground the appellant contends that I misdirected the jury in stating that they could have regard to the evidence of the witness, CD, to the effect that shortly after the appellant had sexual intercourse with the complainer, the complainer said to CD that she had been raped, given that the complainer in her evidence had denied making such a statement. Reference is made to MacDonald v HMA 2004 SCCR 100 ...

The circumstances in which I gave the direction at page 22, line 15 to page 24 line 23 are as follows.

The complainer, AB, gave evidence from the witness box. The witness, CD, gave evidence from another part of the court building by way of CCTV link. Neither AB nor CD spoke very distinctly. At times they spoke quite softly, the audibility of CD being affected by the position she adopted in front of the CCTV camera. Both became distressed at points in their evidence. The complainer had to be allowed a break to compose herself on one occasion and simply ran out of court on another. In the result I was not entirely confident that I had heard everything that each of these witnesses said. However, my notes are consistent with what appears in the ground of appeal: that the complainer denied making any statement to CD following upon what she said had been rape. According to my note, the complainer explained that after the appellant had intercourse with her in the park, she walked up the hill and got back into his car. The advocate depute asked her whether she had said anything to CD at that time. The complainer said no. She explained that after she and CD had been dropped off by the appellant and his companion in town, she and CD had gone to the Holiday Inn to use the toilet. The advocate depute asked whether at that time she told CD what had happened. The complainer answered, 'She asked me'. The complainer then explained that she had been aware of the presence of CD at the top of the hill in the park. After that answer the advocate depute again asked whether she had told CD what had happened and the complainer answered, 'No', going on to explain that she was embarrassed. That position was confirmed to Mr Freeman [solicitor advocate for the appellant] in cross-examination. I have noted him as asking, 'No one said anything to CD about what happened?'. The complainer replied, 'no'. CD, on the other hand, stated in chief that the complainer 'said that she had been raped by Shaban'. I cannot tell from my notes whether that was in response to a specific question from the advocate depute. It may have been volunteered. The advocate depute's follow-up question was, 'Are you sure about that?'. To that question CD responded by indicating the point in the park where 'she explained what happened'. The advocate depute asked whether anything had been said to the police, to which CD said, 'No, she didn't want to tell anyone'. No objection was taken to this line of questioning, although, in fairness, it may be, as I have already indicated, that the most damaging answer: 'She said she had been raped by Shaban', did not come as an answer to a specific question directed at eliciting that information.

Although the advocate depute may not have intended to elicit an account of a de recenti statement given by the complainer to CD, he did appear to rely on this passage of evidence when he addressed the jury. He accepted that the Crown had to rely on CD for corroboration of the complainer's account of a forcible rape. He also accepted that in certain respects the evidence of CD differed from that which had been given by the complainer. As an example of that, the advocate depute referred to the evidence of CD that before they had arrived at the park, there had been mention of money for sex. The complainer had vehemently denied that. The advocate depute relied on CD's evidence of having heard a scream, of the appellant's companion saying that the appellant 'would not hurt her', of seeing two figures who seemed to be the appellant and the complainer close together, and of the complainer's distress shortly afterwards. In relation to distress the advocate depute referred to CD's evidence describing the appearance of the complainer, CD thinking that 'something was different', and that the complainer appeared 'freaked out'. He then went on to say, 'and before she got back into the car she told CD that Shaban had raped her'.

The point was taken up by Mr Freeman in his speech to the jury. In the context of listing a number of things about the complainer's evidence which 'did not square up', Mr Freeman told the jury that there was an issue about intimation of the allegation of rape. According to Mr Freeman, the advocate depute had said that the complainer had made an allegation shortly after she had got into the car, whereas, Mr Freeman told the jury, she did not in fact say anything. In these circumstances I took the view that I required to give some direction to the jury about the use they could legitimately put to any de recenti statement that may have been made by the complainer. I was concerned, given the context in which it had been referred to by the advocate depute in the course of his speech, that the jury did not take it to be a source of corroboration. I therefore checked my notes of the evidence which confirmed that whereas I had noted CD as saying that the complainer had told her that she had been raped, the complainer had denied saying anything at all to CD before getting into the car. However, having regard to the way in which each of the girls had given evidence, I was not confident that my note was comprehensive. Moreover, I took the view that it was not for me to determine what the evidence had been and I did not wish to suggest otherwise to [the] jury. At pages 8 to 10 I gave conventional directions to the effect that determining what the evidence has been and what should be made of it are matters for the jury and not for either counsel or judge. The point that it was the jury's recollection of the evidence that was important was reiterated at pages 17, 34 and 37. My direction on the use of a de recenti statement is to be found at pages 22 to 24 of my charge. In that passage I explain my understanding of the evidence which was that while CD had said that AB had told her that she had been raped, AB denied that. At page 24, line 15 I directed the jury that they could have regard to the fact that she gave a de recenti account "assuming that you find that she said anything". As I would understand the basis of the criticism of this direction in the Grounds of Appeal it is that I left it to the jury to decide that AB had made a de recenti statement, simply on the basis of the evidence of CD, even if in their view (which would have been consistent with my note) the evidence of AB had been that she had made no such statement. I can see that I may have been in error by failing to direct the jury that, at least if the statement was to be used for the purpose of supporting the credibility of the complainer, they could only find the statement to have been made if the complainer herself (and not just another witness) spoke to her making the statement. It is, of course, for your Lordships to determine whether that was a misdirection on my part."

Submissions for the appellant

Discussion