Convicted rapist loses hearsay evidence appeal 



Lord Malcolm
Lord Malcolm

A man convicted of raping a woman who appealed against his conviction on the basis that the trial judge had erred in allowing certain evidence has had the appeal refused. 

Michael Whorlton argued that the evidence should have been excluded as it constituted inadmissible hearsay, its admittance resulting in a miscarriage of justice. 

The appeal was heard by the Lord Justice GeneralLord Carloway, sitting with Lord Malcolm and Lord Turnbull

Rebut a line of defence 

The events alleged in the charge happened in 2014. The police first took a statement from the complainer almost four years after the incident in 2018. Initially, she indicated that there had been no sexual misconduct on the part of the appellant, but later in the statement she mentioned the rape. 

During the trial, the Crown led evidence from two witnesses to whom the complainer had spoken to about what had happened to her prior to going to the police. Objection was taken to this by counsel for the appellant.  

The trial judge repelled the objection on the ground that the evidence was designed to rebut a line taken by the defence in cross examination of the complainer, namely that the complainer had not gone to the police herself but had been approached by them in 2018. 

The trial judge told the jury in his charge that the witnesses’ evidence, if accepted, might tend to negate any notion that the complainer first made an allegation when speaking to the police in 2018, but it could not go towards proof of the events spoken to by the complainer. 

Counsel for the appellant submitted that his questioning of the complainer was limited to an exploration of the terms of the first police statement, and in particular the inconsistency mentioned earlier. As the matter was not de recenti, the evidence should have been excluded. The judge’s decision was made on a misunderstanding of the nature and extent of the cross examination of the complainer. 

Justified rebuttal 

The opinion of the court was delivered by Lord Malcolm. Examining the questions posed by counsel for the appellant, he said: “While it is true that much of the examination in respect of charge 22 focussed on the terms of the statement, the questions quoted by the judge show that counsel also raised the more general issue of delayed disclosure, presumably with the intention of further undermining the complainer’s credibility and reliability.” 

He continued: “The judge’s description of this as a ‘main line of attack’ may be an exaggeration, at least in so far as emerges from a reading of the complainer’s evidence; but it is clear that there is no merit in the submission that the defence did not open up the line which the judge considered justified rebuttal evidence from the two witnesses.” 

Examining the possibility that the evidence was inadmissible hearsay, he said: “Where the objective is simply to establish that something was said, irrespective of its truth or falsehood, and if the fact that it was said is relevant to an issue in the case, the evidence of someone who heard it being said becomes admissible direct evidence, sometimes called ‘primary hearsay.’ The evidence which was the subject of objection fell into [this] category.” 

He continued: “It was led to show that the complainer had made earlier reports of the rape, not that the reports were true. This was relevant to the defence line mentioned above. (The limited use to which the evidence could be put was reflected in the judge’s directions to the jury.) It follows that the judge did not err when repelling the objections.” 

For these reasons, the appeal was refused. 

© Scottish Legal News Ltd 2020



Other judgments by Lord Malcolm