Peter McGuiness v. His Majesty’s Advocate [2025] HCJAC 13

Note of appeal against conviction:- On 1 May 2024, following a trial on indictment at Glasgow Sheriff Court, the appellant was convicted by the jury of two charges:- (a) a charge of indecent assault committed on various occasions between July 1992 and July 1995 (charge 2); and (b) a breach of the peace (charge 3). The appellant was sentenced to 3 years imprisonment in relation to charge 2 and admonished in relation to charge 3. The appellant appealed against his conviction on three grounds:- (i) the complainer’s disclosure of the indecent assault to DN years after the alleged offence was inadmissible hearsay and was not a de recenti statement; (2) distress was exhibited after so long that it was not open to the jury to attribute it to the commission of the crime and the sheriff should have sustained a no case to answer submission; and (3) if evidence of distress was capable of providing corroboration, the sheriff’s directions on it were inadequate and a misdirection. At the trial, in advance of the complainer being asked about the disclosure, the appellant’s solicitor had objected to the complainer being asked about the disclosure to DN it being submitted that it was not de recenti, was too remote in time from the conduct and was inadmissible hearsay. The sheriff repelled the objection on the basis that it was a matter for the jury to decide what weight to give the evidence. At the close of the Crown case the appellant’s solicitor made a no case to answer submission in terms of section 97 of the 1995 Act contending that distress could only have corroborative effect if accompanied by a statement capable of being de recenti and since the disclosure accompanying the distress was not made de recenti, the distress was unable to corroborate the complainer’s evidence. The sheriff repelled the submission and considered that whilst the statement and distress were not de recenti it was available to the jury to enable them to determine whether DN’S evidence of the complainer’s distress was credible, whether the distress was genuine and whether any distress was due in whole or in part to the conduct he had described. In his charge the sheriff directed the jury that if they accepted DN’s evidence about the complainer’s distress, it could corroborate his account of indecent assault. The sheriff also directed the jury on delayed disclosure, namely, that there could be a good reason why a person against whom a sexual offence was committed might not tell anyone and delayed disclosure did not necessarily make it untrue. Here it was submitted on behalf of the appellant that the gap in the alleged offending and the disclosure of the distress/statement to DN of somewhere between 9-13 years was too great for it to be treated as de recenti. It was recognised on behalf of the appellant, under reference to the Lord Advocate’s Reference No 1 of 2023 2024 JC 140 at para 240 that a witness testifying to a complainer’s de recenti distress was capable of corroborating a complainer’s evidence of rape. It was submitted, however, under reference to paragraph 239 of the Lord Advocate’s Reference No 1 of 2023, that a jury should be directed that a complainer’s evidence on a charge may be corroborated by distress exhibited shortly afterwards but only where the jury are satisfied that the distress arose spontaneously due to the nature of the incident and that the distress was genuine. It was submitted that whilst there is no fixed interval after which distress cannot constitute corroboration the intervening occasions on which the complainer might have exhibited distress may be significant. It was further submitted on behalf of the appellant that statements made by a complainer after the relevant incident is normally hearsay and cannot be used as proof of fact except where the statement is made de recenti (Lord Advocate’s Reference Nos 2 and 3 of 2023 at para 110 reported as HMA v. PG and JM 2024 SLT 1207) and in sexual cases and those involving children it was recognised that greater latitude in terms of time and circumstance are allowed but a de recenti statement meant a statement provided at the first reasonable opportunity to speak to a natural confidante when the complainer must still be under the uninterrupted emotional influence of the offence. It was submitted on behalf of the appellant that the sheriff treated distress and de recenti statements differently which was contrary to what had been intended in the Lord Advocates’ References of 2023 as the sheriff found that the statement made by the complainer and spoken to by DN was not de recenti and therefore not corroborative but then found that the distress exhibited 9 years after the event was corroborative of the complainer’s account. On behalf of the Crown it was submitted that the sheriff was correct to repel the objection as the complainer’s disclosure to DN was primary hearsay and admissible as the objective of leading evidence of a prior consistent statement made by a complainer was relevant to an issue in the case, namely, so what was said by the complainer in her state of distress could be attributed to the crime alleged. It was further submitted that the disclosure did not require to be de recenti to be admissible as primary hearsay albeit only a de recenti statement could be corroborative. It was submitted that distress was corroborative and there is no fixed time period in which the distress must be seen. It was further submitted that the critical direction to be given to the jury was that the jury could find DN’s evidence of the complainer’s distress corroborative of his account if they were satisfied that the distress was attributable to what he had described and the sheriff had given the jury such a direction. Here the court allowed the appeal. In relation to the second ground of appeal the court considered a wide range of authorities including what was said in the 7judge decision in Lord Advocate’s Reference No 1 of 2023 at para 240 that “... a witness testifying to the de recenti distress of a complainer is capable of corroborating direct evidence from a complainer that she has been raped.” The court referred to what was said by the 9 judge decision in Lord Advocate’s References No 2 and No 3 of 2023 at para 52 where the Lord Justice General defined de recenti as meaning “recent; literally of recency.” The court considered a number of cases where distress was exhibited in the hours and days following an incident. In Wilson v HMA 2017 JC 135 and Ferguson v HMA 2019 JC 53 the distress was exhibited 30 hours and 33 hours after the incidents respectively and the court noted here those cases provide examples of situations where distress exhibited within a few days and where there is an explanation for that delay, that it will be a question for the jury to determine if they can find corroboration under direction by the trial judge. Here the court reiterated, following the References of 2023 that for the distress to be corroborative of a complainer’s evidence that she was sexually assaulted, such distress must be observed relatively shortly after the incident said to be the cause of it, with there being no set time period after which such distress is unavailable as corroboration, with each case depending on its own circumstances and often it will be a matter for the jury. The court stated, however, that there have been and will continue to be cases where distress exhibited after too great a period of time will be such that as a matter of law it will not be open for a jury to use the distress as corroboration. The court considered that the present case was such a case with an interval of around 9 years being too remote from the incident to be regarded as de recenti and the sheriff erred in repelling the no case to answer submission. The court observed that the court in CJN v HMA 2013 SCCR 124 had not imposed a 3 week time limit on distress but rather had observed that whilst the corroborative potential of distress exhibited three weeks after an event might in some circumstances have little effect there could be exceptional cases where it would be available as corroboration. Given the court’s decision in relation to ground 2 grounds 1 and 3 did not have to be determined. The court did, however, make certain observations in relation to ground 1. A statement which did not fall within one of the hearsay exceptions could become primary hearsay if, for example, it was used to rebut an attack made on the complainer’s testimony based on supposed prior inconsistent statements. The court also observed that simply because evidence is not corroborative that does not necessarily render it inadmissible and may still be circumstantial evidence in the case.