Shaban Ahmed v. Her Majesty's Advocate [2008] HCJAC 64

Criminal Note of Appeal Against Conviction:- On 16 August 2007, the appellant was convicted by majority verdict at Glasgow High Court of a charge of rape. On 19 September 2007, the appellant was sentenced to five years imprisonment. On 10 December 2007, the appellant lodged a Note of Appeal against conviction including inter alia the grounds of appeal:- "The trial judge misdirected [the] jury on a material issue in regard to the use to which it could put the statement by the complainer, AB...the learned trial judge directed the jury that it could take account of evidence of a de recenti claim of rape by the complainer, AB, although the complainer in her evidence denied making the statement. Reference is made to MacDonald against Her Majesty's Advocate 2004 S C C R page 100 ...to a miscarriage of justice ..." The issue here was whether evidence of a de recenti statement, said to have been made by a complainer alleging rape, can be relied upon by the jury when the complainer in evidence denied making such a statement. In his charge to the jury the trial judge stated:- "...However, maybe what you make of the evidence is that it may be you come to the view that very ... very shortly after the events which, whatever it was that occurred in the park, near the trees, AB said to CD something along the lines of her having been raped. Well you can have regard to that as something that the alleged victim has said very shortly after the incident in question and as I say normally that would be inadmissible as hearsay, but in a case like this, because it is a very recent statement, it is admissible, but only for a limited purpose and the limited purpose is whether, or as a tool as it were, to help you decide whether or not AB was telling the truth when she came later to give evidence in, in the witness box..." It was submitted on behalf of the appellant that there had been a material misdirection in the charge resulting in a miscarriage of justice. It was submitted on behalf of the Crown that there was no rule of law that the complainer must personally give evidence about having made a de recenti statement. Here the Court considered whether it was necessary for the maker of the de recenti statement to confirm having made the statement in evidence or whether such a conflict was a question for the jury to determine.