Sex offender who assaulted his sister and cousin loses appeal against conviction
A sex offender who was convicted of indecently assaulting his cousin, who died before the beginning of the trial diet, has had his appeal against the conviction on the grounds that the trial was unfair refused.
The appellant, AS, was also convicted of the indecent assault, attempted rape, and rape of his sister, AB. He argued that the Crown’s reliance on a statement given by his cousin, CD, prior to his death rendered the trial unfair in terms of article 6 of the European Convention of Human Rights.
The appeal was heard by the Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Turnbull.
“He’s done it to someone else”
The libelled offences against the appellant’s sister took place in the family home in Coatbridge between 1975 and 1980. These escalated to an episode of rape in 1980 when she was 15 or 16 and the appellant was 19 or 20.
AB did not report any of this abuse until 2017 when the police called upon her when making enquiries “into the family”, her immediate reaction to which was to say that “[He’s] done it to someone else.”
The police had previously spoken to the appellant’s cousin CD regarding complaints he made about having been abused when he was 5 or 6 years old. At a local police station, CD made a written statement describing an incident from Christmas Day of 1976 or 1977 when the appellant, who was alone with CD in a room, took out his penis and carried out a series of indecent assaults.
A PC who testified to the making of the statement said that CD certified the statement as a true and accurate version of events, and he had understood her questions with no difficulty. During the course of the trial, the appellant lodged a minute raising a compatibility issue based upon the Crown’s reliance on the hearsay evidence of the deceased CD.
The trial judge repelled this objection on the view that CD’s hearsay could not be characterised as decisive in the sense understood in the context of the ECHR. This required the evidence to be of such significance as was likely to be determinative of the outcome of the prosecution. In this case, there was significant other evidence, most notably the detailed evidence of AB, which added to the persuasiveness of CD’s statement.
On appeal, the appellant submitted that the trial judge had erred in determining that CD’s evidence was not decisive, and that even if it was there were adequate safeguards to ensure the trial was fair. There was nothing directly supporting the credibility of the statement, which was made 40 years after the alleged event.
In response, the Crown submitted that it was legitimate to prove a case using one witness speaking to one incident and the hearsay evidence of a deceased person speaking to another. That did not mean the hearsay was to be regarded as decisive, as there was significant evidence in support of the account from AB. AB’s evidence was capable of showing the appellant as an abuser of younger children within his family in their family homes.
Corroboration not a Convention requirement
The opinion of the court was given by Lord Carloway. On whether the evidence of AB and CD could mutually corroborate each other, he said: “The court must proceed on the basis that the evidence of each complainer demonstrated that the crimes charged were so closely linked by their character, circumstances and time of commission as to form parts of a single course of criminal conduct systematically pursued by the appellant. There is no difficulty in holding that the testimony of one complainer may be corroborated by the hearsay of another complainer.”
He then went on to address the issue of the right to a fair trial under the ECHR, saying: “On any view, CD’s evidence was not determinative of charges 1 to 3. It may have been necessary in terms of Scots law’s need for corroboration before a person can be convicted, but that is not a requirement of the European Convention. This appeal is therefore almost bound to fail in relation to charges 1 to 3, although the court must still look at the counterbalancing factors to ensure overall fairness.”
Applying the principles of the European Court case Schatschachwili v Germany (2016) to the facts of the present case, he said: “The court is satisfied that the appellant did have a fair trial. As already noted, there is no potential unfairness at all in relation to charges 1 to 3. The appellant was able to challenge the testimony of AB in the conventional manner.”
Regarding the charge relating to the appellant’s assault of CD specifically, he said of CD’s statement: “Although it would have been better if it had been audio or video recorded, it was in written form, taken in the relatively formal setting of a police station in front of not only a police officer but a responsible adult. It was detailed and signed on each page by the three persons present. CD initialled corrections. The prospect of the statement not being something which CD had said, whether true or reliable, is substantially diminished.”
Lord Carloway concluded: “The appellant was able to testify on his own behalf and to lead evidence in support of his position. The deceased was a person known to the appellant who would have had some appreciation of his circumstances. The appellant was able to make submissions to the jury which were designed to cast doubt upon the veracity of the statement.”
For these reasons, the appeal was refused.
© Scottish Legal News Ltd 2020