Humphrey v. Her Majesty's Advocate

Factual and Procedural Background

The appellant was convicted of assaulting the complainer on 22 April 2004 at a location in The City, involving dragging her into a car park, pushing her to the ground, pulling down her clothing, struggling with her, repeatedly punching and kicking her on the head, lying on top of her, and raping her, resulting in severe injury.

The appeal arises from a note of appeal against conviction under section 110 of the Criminal Procedure (Scotland) Act 1995. The appellant lodged multiple grounds of appeal, but ultimately focused on a single ground concerning the admissibility and use of hearsay evidence from a deceased witness, which was admitted under section 259 of the Criminal Procedure (Scotland) Act 1995. The appellant contended that the admission and use of this hearsay evidence breached the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR).

Legal Issues Presented

1. Whether the trial judge erred in repelling the defence submission that the admission of hearsay evidence under section 259 of the Criminal Procedure (Scotland) Act 1995, relating to a deceased witness, was unfair and breached the appellant's right to a fair trial under Article 6 ECHR.
2. Whether, having admitted the hearsay evidence, the trial judge properly managed and directed the jury regarding its use and effect to ensure fairness in the trial.

Arguments of the Parties

Appellant's Arguments

• The hearsay evidence admitted under section 259 was decisive to the Crown's case, as it was relied upon to corroborate that the appellant knew the complainer was not consenting to intercourse.
• The appellant argued that the evidence of the deceased witness, who could not be cross-examined, rendered the trial unfair under Article 6 ECHR.
• The appellant submitted that the trial judge should have either sustained the defence submission of no case to answer, withdrawn the hearsay evidence from the jury, directed the jury to disregard it, or in the extreme, discharged the trial temporarily due to unfairness.
• Emphasized that the complainer could not remember the sexual intercourse, making the hearsay evidence critical to the Crown’s case.

Respondent's Arguments

• The Crown argued that the case was based on strong circumstantial evidence, with the hearsay evidence being only a part and not an essential or decisive part of the case.
• Evidence included the taxi driver’s testimony, the extent and nature of the complainer’s injuries, the fact that the appellant and complainer were together during the relevant period, and the complainer’s own evidence that she would not have consented to sexual intercourse in the street.
• The hearsay evidence about the complainer moaning, which was not dependent on the deceased witness’s sight, was of high significance but not decisive.
• The Crown maintained there was sufficient evidence to convict even without the hearsay evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Nulty v HM Advocate 2003 SCCR 378	Admissibility of hearsay evidence and its impact on fairness, particularly when the witness cannot be cross-examined.	The court noted that in Nulty the Crown conceded that hearsay evidence which could not be cross-examined rendered the trial unfair, but this concession reduced the case's significance. The court reserved broader interpretation of section 259 in light of human rights for another day.

Court's Reasoning and Analysis

The court examined the hearsay evidence admitted under section 259, focusing on whether its admission and subsequent use compromised the fairness of the trial under Article 6 ECHR. The court acknowledged the appellant's concern that the hearsay evidence from the deceased witness, who could not be cross-examined, was critical to the Crown’s case.

However, the court found that the hearsay evidence was not decisive or essential to the conviction. The circumstantial evidence, including the taxi driver's testimony, the severity of the complainer’s injuries, and the complainer’s own statements, overwhelmingly supported the conclusion of non-consensual intercourse.

The trial judge was satisfied that it was not unfair for the jury to consider the hearsay evidence in its overall context, and the court agreed that the judge properly managed the trial and gave appropriate directions to the jury about the evidence's use.

The court noted that the question of interpreting section 259 in light of human rights legislation was reserved for future consideration, as it was not fully explored in this case.

Applying a common law approach, the court concluded there was sufficient evidence to support the conviction with or without the hearsay evidence, and therefore the trial was fair.

Holding and Implications

The court REFUSED the appeal.

The effect of this decision is that the conviction stands, with the court affirming that the admission and use of hearsay evidence under section 259 did not render the trial unfair in the circumstances. No new precedent was established regarding the interpretation of section 259 in the context of human rights legislation, as that issue was expressly reserved for future cases. The decision confirms the court’s discretion in managing hearsay evidence and ensuring fairness in trials.