Cross-examination of sexual assault complainer ‘should not extend to witness intimidation’ – Lord Justice Clerk

Lord Carloway added that defence lawyers should show “due respect” the complainer’s rights and that the court has the “power” to if it considers the cross-examination to be “over rigorous”.

The Lord Justice Clerk, sitting with Lord Malcolm and Lady Cosgrove, made the comments in refusing an appeal against conviction by Duncan Begg.

The Criminal Appeal Court heard that appellant was sentenced to eight years’ imprisonment last year after being found guilty of eight charges of assault and rape against two women committed during the 1990s.

He maintained that there was ”no rational basis” for the verdicts other than that the jury had selected those in relation to one of the complainer’s at random in order to provide corroboration for those relating to the other, whom the jury had found credible and reliable.

It was accepted that there was a “symmetry” between the verdicts in relation to each complainer, but the testimony of one of the complainers had been “demonstrably incredible and unreliable”.

Without it the case was “bound” to fail since the jury were “not entitled” to look at the evidence of one complainer in order to bolster the other’s credibility, as distinct from providing corroboration of her testimony, it was submitted.

The judges rejected a challenge for the accused that the verdict was “unreasonable” in that the evidence for one of the complainers could not have been regarded as credible when a guilty verdict had been returned in only four out of 17 charges involving her.

Delivering his opinion, the Lord Justice Clerk said: “There is no foundation for the proposition advanced in the Note of Appeal and the submissions to the court that the jury have selected at random certain charges spoken to by VH purely in order to allow them to convict of charges involving SM. Not only is this entirely speculative, it runs contrary to the more obvious explanation for the verdict; that the jury followed the directions of the trial judge as they were duty bound to do so.

“It should not be readily assumed that the jury’s acquittals on many charges involving VH were because they did not believe VH’s evidence in its essentials on each charge. The more readily comprehensible reason is that, although they may have been prepared to believe VH, they decided, quite rationally, that they could not convict the appellant of charges which were not sufficiently adequately linked in terms of time, character and circumstances with the charges concerning SM such that they could be regarded as part of a course of criminal conduct systematically pursued by the appellant.

“The principle that the testimony of each witness in a mutual corroboration case must be regarded as credible and reliable before it can be used as formal corroboration does not carry with it any implication that the assessment of the credibility of one witness’s testimony should be carried out in a vacuum, ignoring the testimony of the other or others. There is no authority in Scotland to support such a proposition and it defies common sense.”

Lord Carloway also expressed his concerns at her treatment by both Crown and defence counsel over the three days she spent in the witness box.

He said: “While not wishing to be over critical of the advocate depute or defence counsel for the manner in which this case was conducted, given the latitude which still seems to be afforded in practice in cases of this type, it has to be said that both the manner and length of examination and cross examination give cause for concern in relation to the treatment of a vulnerable, or indeed any, witness testifying in the criminal courts.”

The complainer’s examination had lasted for many hours and must have been a “substantial ordeal”. Her cross examination, by defence counsel Brian McConnachie QC, had then begun with the comment “You are a wicked, deceitful, malicious, vindictive liar?”

Lord Carloway described this as “a direct salvo rather than a question, presumably designed to destabilise the witness”, and the cross examination that followed was “conducted in a manner apparently calculated to break the will of the witness, which at times it undoubtedly did”.

He added: “Due regard must be had to the right or privilege under domestic law to test a witness’s evidence by properly directed and focused cross-examination. That right, however, does not extend to insulting or intimidating a witness. It also requires to be balanced against the right of a witness to be afforded some respect for her dignity and privacy.

“The court must be prepared, where appropriate, to interfere when cross-examination strays beyond proper bounds, both in terms of the nature of the questioning and the length of time for which a complainer can be expected to withstand sustained attack. In this case, it is doubtful whether the ubiquitous informed bystander would have regarded the conduct of this trial as affording due respect for this complainer’s rights.”

The trial judge has “a power to control the nature and scope of questioning”.

“He is entitled to stop questioning if he considers it to be ‘protracted, vexatious and unfeeling’ or indeed ‘over rigorous’. The judge may place a limit on the time which can be taken. If a proper balance cannot be achieved by the representatives of the Crown and defence, the court may have a duty to intervene.”