Paedophile loses appeal against conviction over ‘hearsay evidence’ of witness who suffered ‘memory loss’

The Appeal Court of the High Court of Justiciary held, contrary to the decision of the sheriff, that the witness did not suffer from a “mental condition” in terms of section 259 of the Criminal Procedure (Scotland) Act 1995, which sets out the exceptions to the rule that hearsay evidence is inadmissible, and that he statement should have been put to the witness with a view to him adopting it as his evidence.

However, the court ruled there had been “no miscarriage of justice” because there was otherwise a sufficiency of evidence.

Hearsay

The Lord Justice General, Lord Carloway, sitting with Lord Brodie and Lord Turnbull, heard that the appellant David Glass was found guilty of four charges of lewd, indecent and libidinous practices in December 2017 after a trial at Dundee Sheriff Court, following which he was sentenced to an extended sentence of six years with a custodial period of five years.

The first two (charges 2 and 3) libelled events occurring between 1987 and 1989 in a caravan at Crail involving: first, WW, then aged three or four; and secondly, WW’s brother, SW, then aged between five and six and who was deceased by the date of the trial.

The third and fourth (charges 4 and 5) libelled events occurring between 1994 and 1996 and involving one complainer, JM, then aged between nine and 11: first, on various occasions at Anstruther; and, secondly, on one occasion at Cellardyke.

WW spoke to the events in charges 2 and 3 and JM spoke to the events in charges 4 and 5, all of which occurred when the appellant had been baby-sitting the boys.

Immediately prior to the trial, the Crown had lodged a notice under section 259 of 1995 Act seeking to adduce the evidence of a statement made to a police officer on 20 February 2014 by WW and SW’s brother DW, the complainer on another charge of lewd, indecent and libidinous practices (charge 1) which was said to have occurred on one occasion between 1986 and 1989, when he was aged six or eight, at the same caravan as that in charges 2 and 3.

DW had permanent memory loss as result of a road traffic accident in 2017, and had no recollection of giving the statement or the events described in it.

He was said to have had made a very good recovery from a significant traumatic brain injury, but a consultant reported that it was “entirely probable” that DW’s “inability to remember giving a statement and certain previous events” was “entirely attributable to the extent of the traumatic brain injury”, and that this was “in all probability likely to be permanent”.

The application was opposed on the basis that the relevant part of section 259(2) only applied when a witness was unfit or unable to give evidence, but DW could give evidence – even if he was apparently unable to recollect certain events.

The sheriff granted the application because he was satisfied that, as a result of his mental condition, DW would be unable to give evidence in any competent manner.

‘Sheriff erred’

Following his conviction the appellant appealed, arguing that the sheriff erred in admitting the written statement.

It was submitted that the phrase “in any competent manner” referred to the means of giving evidence (e.g. in court or on commission) and not to the competency of the witness, as there was no suggestion that DW could not have attended court and answered questions.

The phrase “give evidence” should be interpreted in a general sense, rather than construed to mean that a statement would be admissible if a witness could not speak to particular events about which a party wished him to give evidence.

The Crown submitted that the purpose of section 259 was to admit exceptions to the prohibition on hearsay in circumstances other than when the witness was dead.

The fact that a person could turn up at court did not make him an available witness; and “mental condition” was not synonymous with “mental disorder”.

The witness could have given evidence and the statement could have been put to him; and the content of the medical report had been insufficient to merit the grant of the application.

However, the Crown argued that “no miscarriage of justice” had occurred.

Even if the statement had been excluded, there had been no “real possibility of a different verdict” as there was “compelling evidence” against the appellant; notably the similarities between charges 2 and 3 and 4 and 5.

‘Compelling evidence’

The judges observed that s.259 was aimed at witnesses “who cannot give evidence as a generality because of their mental condition” and that the Crown was correct to concede that in the present case the material produced to the sheriff was “insufficient” to support the application.

Delivering the opinion of the court, the Lord Justice General said: “DW was able to give evidence about the ‘matter’ in the statement. His evidence would, according to the Crown, have been that he could not remember the incident or giving the statement. Such a state of affairs, at least in relation to the event, is not unusual. It does not amount to an unfitness or an inability to give evidence as envisaged by the section…

“Section 259 is not designed to deal with the situation where, for whatever reason, the witness, whilst capable of giving evidence generally, has forgotten about a particular event. In that situation, the witness can be asked, in terms of section 260, whether he ‘adopts’ the statement bearing his signature. There is no reason to suppose that the witness would have done other than accept that the signatures on the statement were his and that he would, as it is customarily put, have been telling the truth at the material time.”

“In any event,” Lord Carloway added, “the material produced to the sheriff was insufficient to support an application of this type…For these reasons, the Crown’s concession concerning the adequacy of the supporting material was correctly made.

“Accordingly, the statement ought not to have been admitted as an exception to the prohibition against hearsay. The next question is whether, as a result, a miscarriage of justice has occurred. The answer to that question is in the negative.”

However, the appellant’s appeal against the custodial element of the sentence imposed was successful.

The appellant, who had previously been sentenced in August 2014 to three years and 10 months imprisonment for analogous offending in respect of matters occurring after those on the present indictment, claimed that the custodial period was “excessive”.

The Lord Justice General said: “It is not clear from the sheriff’s report that he did take into account the cumulative impact of the earlier sentence when selecting the custodial period of five years. Had he done so, he would have appreciated that the total of eight years and 10 months, even for the repeated sexual abuse of young boys in circumstances in which the convicted person had inveigled himself into a position of trust, was excessive.

“Having regard to the earlier sentence, the court will substitute a period of three years imprisonment. The extended element of the sentence was incompetent, having regard to the age of the offences… It requires to be quashed.”