Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT DUNDEE

 

 

NOTE

 

By

 

Sheriff K. J. McGowan

 

In the cause

 

HER MAJESTY'S ADVOCATE

 

Against

 

DARREN SMALL

 

 

Introduction

[1]            The indictment in this case libelled two offences, namely:

a.     robbery by presenting a knife at the complainer and robbing him; and

b.     possession in a public place and without reasonable excuse of an article with a blade or a sharp point (a knife) contrary to Section 49(1) of the Criminal Law (Consolidation) (Act) 1995.

[2]            By Minute date 23 December 2013 under Section 71 of the Criminal Procedure (Scotland) Act 1995, the accused intimated certain preliminary issues. For the purposes of this note, the relevant part of the Minute is paragraph 2(c), which foreshadowed an objection to the Crown leading certain evidence of what the complainer had been heard to say at the time of, or shortly after, the alleged robbery.

Procedural issues

[3]            The matter called for a First Diet before me on 21 January 2014 and I was invited, on joint motion, to continue consideration of it to the next day to allow the relevant witnesses to attend.

[4]            When I sought clarification of the point to be argued, it became apparent that the point to be taken was not (as it appears the Crown had thought) that the evidence in question did not fall within the res gestae or de recenti exceptions to the bar against hearsay, but instead that the class of cases in which such evidence could exceptionally be admitted was limited to those of a sexual nature (see further below).

[5]            Furthermore, I understood that although there was a live issue as to the timing of the statements by the complainer (which would determine whether they were part of the res gestae or had been uttered de recenti) it was accepted that that would fall to be determined by the jury, in the light of the evidence itself and appropriate directions.

[6]            Thus, it became clear that the issue raised in the Minute and which fell to be determined by the Court as a preliminary issue was one which could be determined without hearing evidence.

[7]            I draw attention to this to highlight the need for Section 71 Minutes to be framed with an appropriately degree of specification. In the present case, the objection to admissibility was not clearly framed. Putting it shortly, the Minute identified "what" evidence what was said to be inadmissible but does not say "why", thus obscuring the precise point at issue. The need for precision is required on grounds of fair notice and also to avoid witnesses being brought, unless that is essential of determination of the point at issue.

The substantive point

Submissions for accused

[8]            The charge in this case was not a sexual assault nor did it have any sexual element to it at all.

[9]            In HMA v Morton 1938 SC 51, a case of sexual assault, the court (LJC Aitchison at page 53) said:

"A statement made by an injured party de recenti, unless it can be brought within the rule of res gestae, is ordinarily inadmissible as being hearsay only, but an exception is allowed in the case of sexual assaults upon women and children, including sexual offences against young boys. In cases of that kind the Court will allow the evidence of complaints or statements de recenti made by the injured party, for the limited purpose of showing that the conduct of the injured party has been consistent and that the story is not an afterthought, and, in the case of assaults upon women, to negative consent."

 

[10]         That was a clear statement that de recenti hearsay evidence was only admissible in cases of sexual assault. Morton had not been overturned or disapproved. It was Full Bench decision. As such, it was binding.

[11]         The passage mentioned contained the ratio decidendi of the case. Alternatively, if it did not, the passage was nevertheless clear, authoritative and highly persuasive.

[12]         HMA v Stewart 2 Irv 166 predated it and as such did not undermine the authority of it.

Submissions for Crown

[13]         Stewart was an example of de recenti evidence being admitted in a murder case.

[14]         In the passage relied on by the accused, the Lord Justice Clerk had not used the word "only". So although he was identifying an exception to the hearsay rule, it was not clear that he was saying that the class of offences identified by him (sexual assaults against women and children including sexual offences against young boys) was the only permissible exception.

Discussion

[15]         I proceeded on the basis that if the passage from Morton relied on by the defence was the ratio decidendi of the case, it would be binding on me.

What is the ratio decidendi of Morton

[16]         In Stair Memorial Encyclopaedia, 'Sources of Law', paragraph 336, the ratio decidendi is described as:

"the element of principle which is binding in later cases and as such is a proposition of law which the decision in the case embodies or illustrates."

 

[17]         I note that the arguments presented by the appellant and the Crown in Morton make no mention of the issue of de recenti. Accordingly it does not appear to have been a live issue which the parties were seeking to canvass before the Court. Likewise, the rubric does not mention hearsay, res gestae or de recenti.

[18]         By contrast, the points of principle being addressed by the Court appear to be (1) the requirement for corroboration and (2) what can and cannot satisfy that requirement. Thus, at Page 53, Court said:

"The essential idea of corroboration is that the testimony of one witness, whether direct to the actual commission of the crime, or indirect to some circumstance implicating the panel in the commission of the crime, is enforced by the testimony, direct or indirect, of some other witness, so that there are concurrent testimonies, either to the same or to different facts, each pointing to the panel as the person by whom the crime was committed. It is this conjunction of separate and independent testimonies, each incriminating, that makes corroboration. A statement of the injured party de recenti is nothing but the statement of the injured party, and it is not evidence of the fact complained of."

 

[19]         Accordingly, it appears to me that the issue in Morton was not about the admissibility of de recenti evidence but about its corroborative value - or rather its lack thereof.

[20]         On that basis, I was satisfied that the passage in Morton relied on by the accused was not the ratio decidendi. It follows that the passage falls into the category of obiter dicta.

How is obiter dicta to be treated?

[21]         The question is how much weight should be attached to the passage relied on.

[22]         Naturally, obiter dicta from a Full Bench still carry authority and may be highly persuasive. However, in my view there was force in the Crown's submission that the Court did not identify sexual assaults upon women and children as the "only" class of cases in which there was an exception to the rule against admitting de recenti evidence but instead as "an exception" (emphasis added).

[23]         Furthermore, while it is true that Stewart predated Morton, the fact that it was not cited to and discussed by the Court in Morton itself tends to diminish the potency of the passage relied on by the accused.

[24]         In addition, there is at least one reported divorce case in which a de recenti evidence was admitted: Martin v Martin (1954) 70 Sh. Ct Rep. 306 (cited in "Scottish Contemporary Judicial Dictionary", W Green, 1995).

[25]         Finally, if there is said to be a restriction on the class of cases in which de recenti evidence is to be admitted in support of credibility, it is difficult to see the rationale for such a limitation.

Disposal

[26]         In the whole circumstances, I was satisfied that the passage in Morton relied on did not have the effect contended for by the accused. Therefore, I repelled the defence submission and refused the Minute.

 

"K.J. McGowan"

Dundee, 12 February 2014