Appeal Court warns judges not to ‘cross-examine’ complainers in sexual offence cases in rejecting appeal against rape conviction

The Criminal Appeal Court warned that judges who repeatedly intervene by questioning a witness risk giving the impression that they are trying to “undermine” the evidence being given.

The appeal judges made the observation in refusing an appeal by a man found guilty of the rape and assault of his then partner, after reading a transcript of the evidence given by the complainer who herself had to ask for a break because of the trial judge’s interventions.

‘I’m the victim in this’

In a postscript to the judgment, the Lord Justice Clerk, Lady Dorrian noted that the appellant was represented by an “able and experienced” solicitor advocate, who engaged in “well thought out and effective cross-examination” of the complainer in respect of a number of aspects of her evidence. 

Despite this, however, the trial judge decided to intervene during that cross-examination on “a number of occasions” when there was “no obvious reason for doing so”.

The Lord Justice Clerk said: “Some of these interventions were entirely innocuous and were in the manner of clarifications. The reason for some other interventions was less easy to discern. On a number of occasions the judge appeared to be repeating or re-visiting the line of cross examination which had just been advanced.

“If a judge intervenes in such a manner during the examination of a witness there is a danger that an observer might conclude that he was engaging in cross-examination, or was seeking to undermine the testimony being given.”

That appeared to have been the view which the complainer herself formed at one stage, causing her to respond to the judge’s intervention by saying: “I’ve done nothing wrong here. Can I get a break please?”

When the judge queried with her why she wanted a break she responded by saying: “My head is just fried. I’m the victim in this and I’m getting made out to just, I don’t know, it’s like, it’s so hard for me to explain.”

Referring to the opinion of the then Lord Justice Clerk in the 1974 case of Ernest Livingstone v HM Advocate, as approved by the court in Tallis v HM Advocate 1982 SCCR 91, Lady Dorrian added: “The restrictions on the function of a trial judge in examining a witness are well known…There is no reason to think that these observations should not have similar application in the context of a complainer giving evidence of a serious sexual assault.”

The court also made clear that it was the duty of the trial judge to ensure he or she is fully informed of all of the issues and background of a case, including any preliminary matters dealt with, after it became apparent that the judge in this case did not know that there had previously been an application to allow questioning relating to the complainer’s sexual history, in terms of section 275 of the Criminal Procedure (Scotland) Act 1995. 

The Lord Justice Clerk said: “In many cases which feature allegations of sexual offending there will be applications made to elicit evidence in terms of section 275 of the Act. These will normally be dealt with at the preliminary hearing. 

“Such applications require to be made in writing and the court’s decision on any such application will be recorded in the minutes. In the present case an application was presented to the court at the preliminary hearing on 22 June 2018. It ran to four pages. The court’s decision is set out in the minute for that hearing.

“It is unlikely that the judge who conducts a particular trial will be the same judge who had earlier presided at the preliminary hearing. It is therefore essential for a judge who is to preside over a trial involving sexual offences to determine, in advance of the start of the trial, whether there has been such an application in the case and, if so, to familiarise himself with the content of that application and the court’s decision thereon.”

In the transcript of the second day of the complainer’s evidence there was an exchange between the trial judge and the appellant’s solicitor advocate which revealed that the trial judge did not know whether an application under section 275 had been made or not, as he did not have a copy of the application and he said this was “a common feature” in cases over which he had presided.

Lady Dorrian stated: “We would wish to emphasise that it is the duty of the trial judge to ensure that he has available to him, prior to the commencement of the trial, all of the materials which he considers will be necessary in order to be properly informed. In a case involving allegations of sexual offending this will always include a copy of any application made under section 275 and a note of the court’s decision on that application.”

The court heard that the appellant “SG” was convicted of two charges of assault on his then partner. 

The first was a charge of assault to injury in January 2018, and the second was of assault to severe injury and permanent disfigurement, which also involved an act of rape on 25 February 2018, after he subjected to her to a “violent assault” which left her covered in blood then abducted her before taking her to his flat.

He appealed against the rape element of his conviction, arguing that the complainer’s evidence viewed objectively was of “such poor quality” that “no reasonable jury properly directed could have concluded that the complainer was a credible and reliable witness” in relation to the allegation of rape.

‘Credible and reliable’

However Lady Dorrian, who was sitting with Lord Menzies and Lord Turnbull, refused the appeal after ruling that despite the trial judge’s criticisms the jury were entitled to find the complainer a credible and reliable witness.

Delivering the opinion of the court, the Lord Justice Clerk said: “The submission for the appellant was that the appeal should succeed only so far as the rape element of the charge was concerned, it being maintained that no reasonable jury could have accepted the complainer’s evidence on that matter. There were however several difficulties facing the appellant in presenting the appeal on this basis. 

“The first and most obvious is a concession that in respect of the violent physical assault, to severe injury and permanent disfigurement, which the complainer said occurred during the same incident as the rape, the jury were entitled to find her a credible and reliable witness and to convict. Standing the evidence of the findings at the locus and the medical evidence such an approach is inevitable.

“There was also corroboration available in respect of the rape, a factor for which the submissions for the appellant fail to make adequate account. There was evidence corroborative of recent intercourse, and no alternative account to that of the complainer was placed before the court. There was recently exhibited distress. It was not, and could not, be suggested that the intercourse on the occasion in question was consensual.”

The judges considered that any misdirections by the trial judge were ‘favourable” to the appellant.

Lady Dorrian added: “The trial judge did express the view that the evidence of abduction was not evidence which a reasonable jury could have accepted. That may be so, but there was no requirement for them to accept such evidence in order to convict, and indeed they did not even have to deliberate on the matter since it did not appear on the indictment. 

“The trial judge also noted that certain aspects of the evidence ‘should have given the jury pause for thought’: again, that is maybe so but the jury had detailed submissions on all these matters and eventually concluded that they could accept the evidence of the complainer.

“At no point does the trial judge explain why concerns over certain aspects of the complainer’s evidence as to how she got to the flat should, standing the corroboration and lack of alternative explanation, undermine the whole of her evidence to the extent that no reasonable jury could have convicted of the rape which she maintained had occurred inside the flat. 

“The test which has to be applied in an appeal of this kind is a strictly objective one. This was a typical case in which there were elements of the complainer’s evidence which supported her credibility and elements which allowed it to be challenged. The task of the jury was to assess what weight to attach to these factors. 

“There is in our view no basis for suggesting that issues surrounding the credibility or reliability of the complainer’s evidence of what happened before she got to the flat meant that her evidence of what happened thereafter was so lacking in credit that no reasonable jury could have convicted the appellant of the charge in question.”