Summary of Appellate Opinion

Factual and Procedural Background

The Appellant was convicted after a trial of multiple offences including several charges of rape of his then partner, Complainer A, an assault on her, and a charge of raping a second complainer, Complainer B (who later died), together with other offences. The trial judge imposed a cumulative extended sentence of 12 years and 6 months with a custodial term of 9 years and 6 months. The Appellant appealed only against the convictions (not the custodial sentence in relation to two specified charges).

At trial the Crown relied on the oral evidence of Complainer A, admissible hearsay of statements from Complainer B (deceased), and a body of circumstantial evidence for free-standing corroboration on certain charges. The Appellant gave evidence and called two witnesses, Witness D (a friend) and Witness E (the Appellant's father). The indictment originally contained 14 charges; some were withdrawn by the Crown or resulted in acquittal or no case to answer on specified counts.

The appeal challenges two procedural rulings made by the trial judge: (1) the judge's repelling of certain objections to answers given by Complainer A that the Appellant contends amounted to evidence of conduct not libelled in the indictment and prejudicial material; and (2) the judge's repelling of an objection to a question put by the Prosecutor in re‑examination of Witness C, and, having so repelled it, declining to permit the defence a further opportunity to cross‑examine.

Legal Issues Presented

1. Whether the trial judge erred in repelling objections to evidence led through Complainer A that the Appellant alleges was conduct not libelled in the indictment and/or prejudicial in breach of statutory rules (including the requirement for timeous objection under section 118(8) of the Criminal Procedure (Scotland) Act 1995 and the prohibition on previous convictions in section 101(1)).
2. Whether the trial judge erred in allowing the Prosecutor to refer to a police statement in re‑examination of Witness C where that statement had not been referred to in cross‑examination, and whether the defence should have been allowed a further cross‑examination to address material arising in re‑examination.

Arguments of the Parties

Appellant's Arguments

• The Appellant complained that Complainer A gave answers describing conduct not libelled in the indictment (examples included references to drunkenness, damaging a door, interfering with a steering wheel while driving, being a "sexual deviant", smashes to mobile phones and other extraneous matters) and that an objection to these answers was timely but was wrongly repelled by the judge.
• The Appellant argued the judge erred in indicating that a single general objection sufficed and that repeated objections were unnecessary, because this could inhibit the requirement for timeous objection under section 118(8) of the 1995 Act and prejudice appellate review.
• In respect of Witness C, the Appellant submitted that the Prosecutor was not entitled to refer in re‑examination to a police statement that had not been used in cross‑examination and that, because this reference raised new material, the defence should have been granted a second cross‑examination to explore it.

Respondent's Arguments

• The Respondent (Prosecutor) submitted that scene‑setting questions about the early relationship were legitimate and did not amount to leading evidence of uncharged crimes; some of the material complained of was prompted by cross‑examination and thus could not found a ground of appeal (citing prior authorities).
• The Respondent argued that where prejudicial material arises inadvertently, the trial judge has a range of remedial options (as identified in an authority cited by the court) and that the trial judge exercised a permissible discretion in managing the evidence and directions to the jury.
• Regarding re‑examination of Witness C, the Respondent maintained the matter had already been the subject of cross‑examination and, in any event, re‑examination scope is a matter of judicial discretion for the trial judge.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a two‑stage approach: first, whether objections were timeously stated (section 118(8) 1995 Act), and second, on the merits, whether the impugned evidence required remedial action. The court observed many of the defence objections were not taken at the time a question was asked or before an answer was completed and were therefore vulnerable under section 118(8), which limits raising late objections to evidential rulings.

The court acknowledged practical difficulties in interrupting or controlling a witness (magnified where evidence was given by live TV link) and accepted the trial judge’s explanation that he would hear further submissions later, but said the judge should have permitted explicitly timeous objections to irrelevant evidence; nonetheless, most objections had already been untimely.

Turning to the substance, the court analysed the statutory prohibition on referring to previous convictions (section 101(1) 1995 Act), noting such a prohibition can be breached directly or by implication, but that a witness volunteering prohibited material in response to a competent question does not necessarily amount to a breach. The court applied earlier authorities to hold that much of the complained material did not disclose previous convictions or deliberate elicitation by the Prosecutor.

Where an implied breach might arise, the court reiterated the trial judge's options identified in the authority (ignore, direct jury to disregard, desert the trial) and emphasised the trial judge is best placed to assess the context and potential prejudice. The court concluded the judge permissibly adopted the first option (to ignore the offending evidence and not draw attention to it) rather than highlight it with a direction, given the moderate potential for prejudice and the judge's other comprehensive directions focusing the jury on relevant evidence and on avoiding moral or emotional distractions.

On the specific issue of re‑examination of Witness C, the court found that the matter referred to in re‑examination had already been raised in cross‑examination (the timing of a remark by Complainer A), and in any event that scope of re‑examination is a matter of judicial discretion (citing the relevant authority). The trial judge did not seriously err in refusing a further cross‑examination.

The court emphasised that none of the challenged answers were clearly the product of careless questioning by the Prosecutor, that the judge repeatedly intervened to control the witness, and that defence counsel did not seek desertion or propose a specific direction at trial. Considering the totality of trial directions given to the jury (both written and oral), the court concluded there had been no material prejudice affecting the charges of conviction.

Holding and Implications

REFUSED

Holding: The court refused the appeal against conviction and held there was no miscarriage of justice arising from the matters complained of.

Implications: The Appellant's convictions as upheld at trial remain in place. The court found no basis to disturb the convictions for which the Appellant was convicted and did not set aside or remand the trial. The opinion does not purport to establish a new principle of law; it confirms that (i) objections must generally be timeously taken under section 118(8), (ii) volunteered or spontaneous answers are treated differently from deliberately elicited references to previous convictions, and (iii) a trial judge has a range of discretionary remedies when prejudicial material emerges and is best placed to choose the appropriate course.

Notice: all personal names and identifying particulars in this summary have been replaced with generic placeholders to preserve anonymization consistent with the original instruction. The summary reflects only information contained in the opinion provided.