Appeal against three rape convictions based on witness comments on matters not libelled refused by High Court

About this case:

• Citation:
  [2025] HCJAC 53
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Beckett

Appellant PB was convicted after trial of three charges of rape of his then partner AA, as well as a further charge of assaulting her and one of raping a second complainer, BB. He contended that the trial judge erred in repelling certain objections to the evidence of one complainer who gave prejudicial answers to some questions, and in repelling an objection to a question put to another witness, that complainer’s mother.

The appeal was heard by Lord Beckett, the Lord Justice Clerk, with Lord Armstrong and Lord Clark. Ogg, solicitor advocate, appeared for the appellant and Cross, advocate depute, for the Crown.

Extraneous observations

During the trial, AA spoke to the charges on which she featured, including one for which the appellant was acquitted, and admissible hearsay was adduced of statements made by BB, who was deceased by the time of trial. In ground 1 of appeal, the appellant complained that AA spoke to conduct not libelled in the indictment, specifying only that she described him as a sexual deviant and that he was in a sexual relationship with a male friend. He maintained that a timeous objection was taken to this evidence and the judge erred in repelling it.

AA’s evidence was given by TV link, and the trial judge explained that AA was not always aware that counsel had stood up to state an objection. When describing the events of charge 4, she mentioned unprompted that as she and the appellant were arguing in the car, he pulled the steering wheel, something which was not referred to in the charge. In response to an objection, the trial judge said that he intended to continue with evidence and would hear submissions on the point later.

Later in her evidence, AA stated that the appellant would sometimes stay at DD’s flat to drink and added “I’m not sure what else he does with his friend”. She later added that she would say that they were more than friends and that he would return from DD’s flat “with his bum bleeding”. At the conclusion of her evidence, the judge did not hear further submissions, and the appellant submitted that the judge ought to have directed the jury on the evidential status of her extraneous observations.

In ground 2, the appellant maintained that the judge erred in repelling an objection to the Advocate Depute referring witness CC, the mother of AA, to a police statement in re-examination when it had not been referred to in cross-examination. It was submitted that, unless the statement had been used in cross-examination it was thereafter inadmissible. The judge erred again in declining to allow the appellant a second cross-examination to explore the matters raised in re-examination relating to the police statement.

On the first ground of appeal, the advocate depute submitted that the matters complained of did not require notice in a charge and had not been invited by the Crown. Inappropriate responses that were not invited by a prosecutor’s question did not breach the statutory prohibition concerning an accused person’s previous convictions.

Not necessary to highlight

Delivering the opinion of the court, Lord Beckett said of the first ground of appeal: “Because a point came where the judge dissuaded counsel from stating objections to AA’s evidence, indicating he would hear submissions later, we have considered this ground on its merits. We can understand why the judge did so but, insofar as this might inhibit an appeal based on timeous objection, he should have qualified his approach to permit, explicitly, timeous objections to irrelevant evidence. In fairness to the judge, none of the objections stated before he gave that indication had been timeous.”

He continued: “Whilst some of AA’s evidence about the appellant was irrelevant, it was not necessary for the judge to highlight it by giving directions to ignore it. It was perfectly proper, and reasonable, to take the course of not reminding the jury of it. What he did was to focus the jury’s attention on the evidence relevant on each charge from the various sources supporting the Crown case and the evidence relevant to the defence case, notably the appellant’s denials.”

Considering some of the specific conduct spoken to by AA, Lord Beckett said: “Interfering with the steering wheel whilst the complainer was driving might be criminal. It was not invited by the advocate depute and emerged spontaneously. It is the kind of thing that happens in trials routinely. It might lead to a motion to amend the indictment in which case the jury could consider it. That is not what happened here, but it was a matter for the judge to determine whether, or not, to address it.”

He added: “The ‘bum bleeding’ comment followed a question about AA saying that the appellant had fathered children by different mothers, and defence counsel stating: ‘From the man you suggest is living with his boyfriend in a flat? Is that right?’ As we have observed, consensual sexual activity between consenting adults is not criminal. Whilst infidelity may be disapproved of, any possible prejudice was squarely met by the direction the judge gave in his charge that the trial was not concerned with morals or social ethics.”

Lord Beckett concluded on ground 2: “Defence counsel’s exploration in cross-examination, and emphasis of the contrast between two versions of the complainer’s comments, rendered legitimate the Advocate Depute confirming in re-examination what CC had told the police and her adoption of her statement. CC said in re-examination that her memory was better when she spoke to the police and adopted the fuller version of what the complainer had said to her, including the specification of the rape occurring ‘last night’. Accordingly, it was not a new matter that did not to arise from cross-examination.”

The appeal against conviction was therefore refused on both grounds.