Andrew Gerald Lingard v. His Majesty’s Advocate [2023] HCJAC 42

Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellant was indicted in relation to various charges of indecency including common law and statutory charges of lewd, indecent and libidinous practices towards LY in 2005 when, in the August, she was under 12 and, from August to December, when she was over 12 but under 16 by touching and digitally penetrating the complainer’s vagina (charges 4 and 5). Further charges related to alleged conduct against the complainer’s older sister LA who was the appellant’s partner at the time (charges 1 to 3), namely, an indecent assault in 2005 and a number of rapes in 2007 and 2010. Charge (6) libels a statutory charge of lewd, indecent and libidinous practices towards LY’s twin sister, LE, between 2006 and 2009, when she was over 12 but under 16. The Crown sought to lead evidence of an exchange of text messages between the appellant and LA in August 2013. The appellant objected to the admissibility of that evidence. It was contended on behalf of the appellant that the evidence was irrelevant and inadmissible because the appellant’s remarks were neither made after he had been confronted with the allegations nor did they contain sufficient detail to link the appellant with the charges. It had been argued at first instance that while the texts were capable of being construed as some form of admission to some form of wrongdoing, they were not made in response to any specific allegation about the charges libelled and were therefore irrelevant and inadmissible. The judge considered that an extra judicial statement was a piece of circumstantial evidence which was as cogent as blood on clothing or finding stolen goods on a person and having regard to Greenshields v HMA 1989 SCCR 637 at 642 it was not only “clear and unequivocal admissions that had evidential value” and that the evidence was relevant and admissible. The appellant appealed against that decision on the ground that the law as outlined in Gracie v HMA 2003 SCCR 105 and G v HMA 2012 SLT 999 was binding on the judge at first instance (the circumstances in those cases matching those present here) and that the appellant had never been confronted with the allegations relating to charges 4 and 5 only what had been included in a text 12 months before. It was submitted that the judge had erred in placing reliance on what was said in Greenshields as in that case specific allegations had been put to the accused and there was no link between what the appellant had been talking about and what was libelled. On behalf of the Crown it was submitted that in the whole circumstances it could be inferred that the messages amounted to an admission of sexual assault of LY. Here the court refused the appeal. The court considered that it was not authority, having regard to CR v HMA [2022] HCJAC 25, that it was only unequivocal admissions in the clearest terms that could provide corroboration. The court considered that the jury in the present case would be entitled to hold, if they accepted it, that what the appellant said in the texts amounted to an admission that he had conducted himself as libelled.