Mark Humphrey v. Her Majesty's Advocate [2008] HCJAC30

Criminal Note of Appeal Against Conviction:- On 14 October 2005 the appellant was convicted of a charge of rape at Glasgow High Court. The appellant appealed against conviction on the following ground:- "That the learned judge erred in repelling the submission by the defence at the close of the evidence that the leading by the Crown of hearsay evidence in terms of section 259 of the Criminal Procedure (Scotland) Act 1995 relating to a deceased witness Joseph Robertson was unfair and in breach of the appellant's right to a fair trial in terms of Article 6 of the European Convention on Human Rights..." The appeal did not, however, proceed by way of a devolution issue. It was submitted on behalf of the appellant that the admissibility of hearsay evidence which could not be cross-examined amounted to a lack of fairness in the trial particularly where the evidence was decisive as counsel submitted it was in the present case. Counsel for the appellant submitted that the deceased's evidence was not simply corroborative but the substance of the case against him. For the Crown it was submitted that the case was strong circumstantially and the heresay evidence of the deceased provided only a part, and not even an essential part, of the whole Crown case and could not remotely be categorised as decisive. Here the court considered all of the evidence led in the trial against the appellant with a view to ascertaining whether the heresay evidence of the deceased was decisive. The court further considered whether the trial judge had dealt with the issue of fairness to the appellant with regard to the admission of the s.259 statement adequately.