APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Bracadale Lord Drummond Young	[2014] HCJAC 136 HCA/2014‒1560/XC   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   NOTE OF APPEAL AGAINST CONVICTION   by   CHRISTOPHER O’SHEA Appellant;   against   HER MAJESTY’S ADVOCATE Respondent:   _____________

Appellant: Jackson QC, Considine, solicitor advocate; Fitzpatrick & Co, Glasgow

Respondent: P Kearney AD; the Crown Agent

 

27 November 2014

Introduction
[1]        On 12 February 2014, after an 8 day trial at the High Court in Paisley, the appellant was found guilty of the following charges:

“(1)      on 8 July 2013 at Bridge Street, near to its junction with Fulwood Avenue, Linwood you … did assault Craig McSporran … and did repeatedly strike him on the body with a knife or similar instrument and you did murder him;

(2)        on 8 July 2013 at Bridge Street, near to its junction with Fulwood Avenue, Linwood you … did assault Derek Mark MacNeil … and did repeatedly strike him on the head and body with a knife or similar instrument to his severe injury, permanent disfigurement and you did attempt to murder him”.

 

On 18 March 2014, a sentence of imprisonment for life was imposed with a punishment part of 18 years in respect of charge 1.  A concurrent 10 years was imposed on charge 2.

 

Evidence
[2]        The complainer in charge 2, namely Derek McNeil, and the deceased in charge 1, namely Craig McSporran, had been drinking prior to joining each other at the Heritage Bar, Bridge Street, Linwood.  After closing time, they made their way northwest on Bridge Street and around the corner westwards into Fulwood Avenue.  The first houses on the north side of Fulwood Avenue are numbers 2 (ground) and 4 (upper).  The deceased was carrying a glass of beer, which he and the complainer both drank from in turns. 

[3]        According to the complainer, once they had reached a point outside numbers 2 and 4, the appellant ran towards them from the path at number 4.  He was carrying a knife.  The complainer ran back into Bridge Street, going towards the Heritage.  He turned to see the deceased on the ground with the appellant standing over him wielding a knife.  The deceased and the appellant were in Bridge Street, out of view of persons in the vicinity of 4 Fulwood Avenue.  It was not disputed that this is where the murder took place.  The complainer moved towards where the deceased was lying, but the appellant came at him again with the knife.  The complainer stumbled and fell further down Bridge Street.  The appellant struck him on the head with the blade and handle of the knife.  The complainer was stabbed in the upper thigh. 

[4]        Shortly before the man with the knife had run out, someone had thrown an object through the stair window of number 4, which was occupied by the appellant, his partner Margaret Rooney and their several children.  Whether this had been the deceased, the complainer or an unrelated third party, remained unresolved.

[5]        Isabel Gribben said that she had been walking eastwards in Fulwood Avenue towards Bridge Street.  She had encountered Mrs Rooney in a frantic state, screaming and crying, in the middle of the road outside number 4.  Mrs Rooney was looking towards Bridge Street and repeating: “They bastards smashed my window” and “My man’s round there”, or “My man’s down there”.  Shortly thereafter, a man ran towards them from Bridge Street.  He seized Mrs Rooney by the arm and said, “Come on” and “Let’s get in”, before the two of them went up the path towards the entrance to number 4.  Miss Gribben’s impression was that the man was Mrs Rooney’s partner. 

[6]        Mrs Rooney testified that she had been alone in the house when a brick came through the stair window.  She had run outside in a frantic state, shouting out what had happened.  She saw two men, presumably the complainer and the deceased, running eastwards in Fulwood Avenue towards Bridge Street.  She then saw two different men running from her right, eastwards in the same direction.  One of them had told her to go “back” into the house “with the weans”.  She had done so, but had come back out immediately thereafter and met Miss Gribben.  She accepted that she had been frantic.  She admitted that she had said to Miss Gribben that somebody had just put a brick through her window, but she denied saying, “My man’s away after them”.  She maintained that she had said, “There’s a guy after them”.  One of the unidentified men had then returned, run down the path towards her front door and into the porch saying, “I thought I told you to stay in the f…ing house”.  The unidentified men had not been seen by the complainer, Miss Gribben or another woman at the scene, namely Cherie Christie. 

[7]        Other evidence placed Mrs Rooney in the middle of the road, talking to Miss Gribben, and a man running from Bridge Street into the garden at number 4.  One witness told the police that this had been the same man as occupied number 4 (ie the appellant), although he failed to identify him at a parade.  He also said that it was a different person from a man that he had later seen emerging from a taxi at number 4 (infra). 

[8]        Miss Gribben had continued into Bridge Street where she found the deceased lying on grass, holding his stomach.  The complainer was staggering in the roadway.

[9]        Half an hour after the incident, a taxi was called to another address in Linwood, namely the home of the appellant’s mother.  The appellant and his two brothers got into this taxi, with the appellant specifically introducing himself to the taxi driver by name.  The taxi arrived at 4 Fulwood Avenue.  The appellant went into the house and returned to pay the driver.  In due course, the two brothers gave evidence that, at the material time, the appellant had been with them at their mother’s address.  The appellant had, by then, also testified on his own behalf in support of this alibi.  However, there was other evidence to suggest that, after the incident, the appellant had cycled from his home to that of his mother and that the alibi had been concocted.

 

Charge to the jury
[10]      In advance of his charge, submissions had been made by the appellant and the advocate depute relative to the value of the evidence about what Mrs Rooney had told Miss Gribben outside number 4.  The trial judge gave parties an indication of his intended directions.  The speeches proceeded upon that understanding.  The advocate depute did not suggest to the jury that the only evidence available to corroborate the identification of the appellant by the complainer came solely from Miss Gribben.  Rather, he said that there were a number of pieces of circumstantial evidence pointing to the appellant as being the assailant; not least the fact that the man coming from Bridge Street had returned to number 4 and escorted Mrs Rooney back into the house. 

[11]      The trial judge provided the jury with standard directions to the effect that hearsay could not be used to prove the essentials of a charge against an accused.  He explained that there were a number of exceptions to that rule, which allowed a jury to treat hearsay as evidence of fact.  He continued as follows:

“One of the exceptions is this: hearsay evidence are (sic) available for a jury to assess as evidence of the essential facts if they are made at the time of the events in question and can … properly be understood as forming part of the events as events happened.  Statements made by individuals directly involved in the event at the time can be treated as part of what is happening.  Statements made by onlookers and bystanders who are emotionally involved or affected and make a spontaneous utterance or utterances can be treated as part of what is happening.”

 

Immediately after this direction, he referred to the evidence of Miss Gribben about what she had said Mrs Rooney had told her.  He directed the jury specifically that this evidence was potentially available “specifically for determining the identity of the attacker”. 

[12]      Much later in his charge, the trial judge returned to the question of identification.  Having referred to the complainer’s evidence, he directed the jury that there were “many other pieces of evidence” available as support for his testimony, but that:

“As I understand the advocate depute’s submission, the main other source … available to you of positive identification, there may be circumstantial evidence, but the main other source available of positive identification is the remark attributed by Isobel Gribben to Margaret Rooney about ‘my man’ …

            If you reach the conclusion that Margaret Rooney did, indeed, effectively tell Isobel Gribben that it was [the appellant] who had gone up to Bridge Street, then you also have to decide whether that remark, whether uttered once or repeatedly, was uttered spontaneously while the event was unfolding and was uttered under the emotional pressure of whatever event she might have got caught up in, or perceived herself as getting caught up in. …

            If you do not find that Margaret Rooney effectively blurted out about ‘my man’ under emotional pressure and spontaneously as the event unfolded, then you cannot treat whatever she said as evidence against [the appellant]. 

            For safety’s sake, I direct you that unless you find that Margaret Rooney effectively identified [the appellant] by talking about ‘my man’ at the time as the man who went round the corner, applying the rules that I have given you, then you do not have corroboration for the identity of the perpetrator and you would have to acquit …”.

 

The trial judge therefore ultimately gave the jury a clear direction that the evidence of what Mrs Rooney had said, as described by Miss Gribben, was essential and that, without it, there was no corroboration of the complainer’s identification.

 

Ground of Appeal and Submissions
Appellant
[13]      The Note of Appeal contained the following single ground, for which leave to appeal was granted:

“The trial judge erred in holding that a statement made by … Margaret Rooney formed part of the res gestae when the statement was made outwith the presence of any persons involving in [the charge], at a different locus, not within sight of the incident nor within hearing, on a different street and at a time where the witnesses could not say whether or not the incident had been completed.”

 

The appellant’s written Case and Argument developed this ground into a slightly different form to the effect that, since Mrs Rooney did not accept that she had made the statement, what she had allegedly said could not be used as an exception to the hearsay rule, other than as a means of challenging her own testimony. 

[14]      In oral argument, this was developed yet further.  The contention, in broad terms, was that what formed part of the res gestae ought to be strictly construed.  The authorities did not include circumstances of the type existing in this case.  Rather, the speaker, whose remarks were founded upon, had to be a participant in the event and not available to give evidence (Ewing v Earl of Mar (1851) 14 D 314; O’Hara v Central SMT Co 1941 SC 363 at 382‒3 and 386).  The statements founded upon had to be contemporaneous with the event (Ferguson v HM Advocate 2005 SCCR 203; and Cinci v HM Advocate 2004 JC 103).  The person making the remarks had to be physically present at the incident. 

[15]      The approach of the law in England was different in that statements made de recenti were regarded as capable of proving fact (R v Andrews [1987] AC 281).  The matter had been correctly phrased by Stewart: “Evidence” (Stair Memorial Encyclopaedia re‒issue, at para 234) to the effect that the maker of the statement had to be unknown or unavailable at the time of the trial, otherwise, he had to be adduced as a witness (see also William Harvey, 23 February 1835, Bell’s Notes 292; Macdonald: Criminal Law (5^th ed) 316). 

[16]      The trial judge had specifically directed the jury that they required to accept the evidence of Miss Gribben for there to have been a corroborative case.  The jury were not asked to look elsewhere for a sufficiency.  In these circumstances, the trial judge’s direction having been an error, a miscarriage of justice had occurred.  It was not appropriate for the court to look at other evidence, which might have been supportive of the complainer’s identification.  If the trial judge’s direction had been in error, then the conviction required to be quashed, even if the matter may require to be revisited by another jury. 

 

Crown
[17]      For the remarks of Mrs Rooney to Miss Gribben to be admissible as truth of their contents, the words spoken had to be part of the event itself (Cinci v HM Advocate (supra) at para [9]).  It was a matter for the jury to consider whether the remarks fell into that category (ibid para [21]).  Evidence could be given of remarks made by anyone who heard them (Ferguson v HM Advocate (supra)).  The maker of the statement could be deceased, may be an incompetent witness such as a child (Allison: Practice p 520) or may have declined to give evidence (William Harvey (supra)).  Where the maker of the statement denied making it, it was a matter for the jury to consider whether they accepted that denial.

[18]      Evidence of what was said during an attack, and heard by a witness who did not see the actual incident, could form part of the res gestae and corroborate a complainer’s account (Ferguson v HM Advocate (supra) at para [7]).  The maker of the remark could be a complainer or an onlooker (Ewing v Earl of Mar (supra)).  The whole incident in this case had occurred within a narrow timespan.  The jury had been entitled to hold that, when Mrs Rooney had been making her comments to Miss Gribben, the appellant had been in the process of attacking the deceased and the complainer.  The statement made by Mrs Rooney went no further than reporting facts which were within her knowledge and part of the res gestae, namely where her partner had gone at the material time.  She may not have seen what had happened in Bridge Street, but she was able to say that that was where the appellant had gone.

[19]      Even if the evidence had not been admissible as proof of fact, there was sufficient alternative material to provide corroboration of the complainer’s identification.  There was no real possibility of a different verdict being reached (Gilroy v HM Advocate 2013 JC 163 at para [63]; Jude v HM Advocate [2012] HCJAC 65 at para [20]).  No miscarriage of justice had occurred.

 

Decision
[20]      The origins, nature and extent of the evidential rule, which permits the admission, as proof of fact, of statements forming part of the res gestae, have been the subject of much academic debate in the context of both Scots and Anglo‒American common law (see eg Davidson: Res Gestae in the Law of Evidence (2007) 11 Edin LR 379; and Davidson: Evidence para 12.11).  One interesting point is whether the rule is an exception to the prohibition against hearsay or whether it is just an aspect of the general proposition that evidence of all of the circumstances surrounding an incident may be led in so far as it is relevant to the discovery of the truth (Dickson: Evidence (3^rd, Grierson ed) para 254).  After all, in a circular fashion, the prohibition of hearsay may itself be seen as an exception to that general proposition, said to be necessitated by the use of the jury system or even just the adversarial system of trial (cf Wilkinson: The Rule Against Hearsay in Scotland 1982 JR 213 at 214).  If it is not classified as hearsay, testimony of res gestae may, according to some, properly be regarded as a species of “real” evidence (O’Hara v Central SMT Co 1941 SC 363, Lord Moncrieff at 390). 

[21]      What is clear is that for centuries (eg Hume: Commentaries ii, 406 footnote a), evidence of res gestae (the things done or the whole circumstances, per Traynor’s Latin Maxims 551) has been admitted as proof of fact.  At one point in the development of the civil law in Scotland, any statement made at or about the time of an event, including one made by a witness reporting events shortly afterwards, could be treated in this manner, at least when the witness was not available to testify.  The unavailability of the maker of the statement may, in certain cases, have coloured the issue of whether the statement was being admitted as part of the res gestae, as distinct from it falling into a different category of admissible hearsay.  The absence of the witness appears, for example, to have been at least a factor in the admission by the Lord President (Boyle) of exclamations by those present at the scene of an accident; one of them being dead by the time of the jury trial and the other’s identity being unknown (Ewing v Earl of Mar (1851) 14 D 314 (at 315)).  It may also have been influential in the Lord Ordinary’s decision to admit statements by a pursuer, who was not competent as a witness (Longworth v Yelverton (1862) 24 D 696, Lord Ardmillan at 697). 

[22]      In Greer v Stirlingshire Road Trustees (1882) 9 R 1069, reports by children to their parents of an accident were expressly accepted (by Sheriff Gloag at 1072; LJC (Moncrieff) at 1077; and Lord Craighill, with whom Lord Rutherford Clark agreed, at 1074) as proof of fact by virtue of their being part of the res gestae, albeit again that it may have been significant that the children were not competent witnesses.  It is interesting to note that it is the dissenting dictum of Lord Young (at 1076) in Greer that has come to hold sway (see Walker & Walker: Evidence (1^st ed) para 377; (3^rd ed) para 8.5.1) as an accurate definition of res gestae as follows:

“Res gestae is the whole thing that happened.  Exclamations uttered or things done at the time by those concerned are part of the res gestae, and may be spoken to by those who heard or saw them.  But an account given by anyone, whether child or adult, on going home, or at any time thereafter, is an account only, and not res gestae.”

 

[23]      It was against this background that this area of the law came to be reviewed, again importantly in the civil context, in the locus classicus: O’Hara v Central SMT Co (supra).  The facts of O’Hara are significant.  They explain why it was that the testimony of the driver and the conductress of a bus, about what a pedestrian had said after an accident, was regarded by the Lord Ordinary and the majority of the First Division as part of the res gestae.  The pedestrian’s intermingled words and deeds provided context for the driver’s post‒accident actions.  The driver had told the conductress that the pedestrian had caused him to swerve.  He had tackled the pedestrian at the scene and, he said, secured from him an admission of fault.  He had asked the pedestrian to write down his name and address on a piece of paper.  The conductress gave the piece of paper to a police officer, who proceeded to take a statement from the pedestrian, having traced him to a nearby cinema.  The pedestrian then denied that he had been at fault.

[24]      The pedestrian was reported to have disappeared abroad by the time of the proof, which occurred in the depths of wartime.  The Lord Ordinary (Russell) held (at 369‒370) that the pedestrian’s statement to the police officer was not part of the res gestae and therefore not admissible as proof of fact.  He held (at 369) that the driver’s account, given to the conductress and the police, was also not admissible for that purpose, although it could be used to bolster the driver’s credibility.  However, he considered that both the pedestrian’s statement to the driver and his actions were part of the res gestae and thus admissible as proof of fact.  In particular, he held that the significance of the driver obtaining the pedestrian’s name and address could not be properly assessed without considering the evidence of the surrounding facts and circumstances.  Critically, the account given by the conductress about all of this was capable of corroborating the driver’s testimony concerning the effect of the pedestrian on his driving.  It was on this basis that the Lord Ordinary assoilzied the defenders, who had thus discharged the onus upon them to displace the prima facie case of negligence arising from the violent swerve of the bus.  This could not have been achieved had the driver’s account remained uncorroborated.  “Full legal proof” was required.

[25]      The majority of the First Division went further in holding that the statement by the pedestrian to the police officer at the cinema might also have been admissible, since it was a recent qualification of his earlier account.  Be that as it may, the Lord President (Normand) endorsed (at 382) the general view of the Lord Ordinary that the incident involving the exchange with the pedestrian was “so clearly bound up with the happening of the accident that without it the history of the accident as offered to the Court in evidence would not be complete”.  This was, he said, the ground for allowing evidence as part of the res gestae.  He had earlier been more expansive, as follows (at 381):

“The principle on which evidence of res gestae, including hearsay evidence, is admitted is that words and events may be so clearly inter‒related that the truth can only be discovered when the words accompanying the events are disclosed.  But it is not essential that the words should be absolutely contemporaneous with the events …  What is essential is that there should be close association, and that the words sought to be proved by hearsay should be at least de recenti and not after an interval which would allow time for reflection and for concocting a story… In most of the cases which are reported the words which were allowed to be proved by hearsay evidence were uttered by the party injured or by the party accused in a criminal case.  But the words and exclamations of by‒standers whose evidence cannot be obtained is also admissible, Ewing v Mar (supra).  In Longworth v Yelverton (supra), Lord Ardmillan … lays down the principle that, when any particular statements are so connected with acts or facts given in evidence that the dissociation of the statements from the acts or facts to which they relate would frustrate the ends of justice and impede the discovery of truth, then that dissociation is prevented, the statements are treated as partes rei gestae, and, on that ground, are viewed as within the exception to the rule (against hearsay) and are admitted accordingly…”.

 

It is worth observing that it was not suggested in O’Hara that evidence of what the driver had said, prior to or at the same time as the pedestrian, could also be regarded as part of the res gestae and thus capable of corroborating the driver’s own account.

[26]      Lord Moncrieff took a more restricted view of res gestae (at 389).  He considered that, for a statement to be regarded as part of the res gestae, it had to be viewed as an item of “real” evidence (see also John Murray (1866) 5 Irv 232); words “uttered by an actor as part of his action”.  He agreed that excluding the words of the driver to the conductress might frustrate the ends of justice, “but that the words of the pedestrian, spoken after the event, were in a different category”.  Nevertheless, the general approach of the majority in O’Hara was taken to be settled law in dealing with issues, notably the existence or otherwise of corroboration, in a civil context (see Walker & Walker: Evidence (1^st ed) para 377). 

[27]      Lord Normand’s subsequent dictum in the Privy Council in the criminal case of Teper v R [1952] AC 480 at 486‒487, again focussed on the need for a close association between the reported statement and the event.  Lord Normand stated that the rules relating to the admission of evidence of res gestae were the same in Scotland and England and rested on two propositions, viz:

“that human utterance is both a fact and a means of communication, and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words, and the dissociation of the words from the action would impede the discovery of truth.”

 

Although commencing with the idea that the principle was an exception to the prohibition against hearsay, he identified a statement forming part of the res gestae as “an item or part of real evidence and not merely a reported statement” (at 487).

[28]      However laudable the sentiments of Lord Normand may be in relation to the search for the truth, and whatever direction Scots law was taking in the civil context, what requires to be understood is that, by the time of O’Hara, the criminal law had taken a different turn as a result of the Full Bench decision in Morton v HM Advocate 1938 SC 50, which did not feature in the reasoning in either O’Hara or Teper, despite Lord Normand’s involvement in all three cases (see infra).

[29]      Following Teper, the criminal law in England moved down a particular, some would say positive, route, but it was one which diverged from that taken in Scotland following Morton.  In Ratten v R [1972] AC 378 a statement made by a hysterical female in an emergency call to the police, shortly before she was shot dead, was not regarded as hearsay but evidence of fact relevant to the death.  Lord Wilberforce famously said (at 387):

“Words spoken are facts just as much as any other action by a human being.  If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken.  A question of hearsay only arises when the words spoken are relied on ‘testimonially’, ie as establishing some fact narrated by the words …”.

 

He continued by analysing three different situations covered by “res gestae”.  The third of these was when a statement was “made either by the victim or a bystander indicating directly or indirectly the identity of the attacker”.  Such evidence could be excluded for two reasons; first, uncertainty as to the words used and, secondly, the risk of concoction.  The first (uncertainty) was, in Lord Wilberforce’s view, a matter of weight for the jury to assess and was no different to evidence that the alleged victim was in a distressed state or had been heard to scream.  The second (risk of concoction) ought, he thought, to form the test which ought to be applied to its admission as proof of fact.  The important feature to concentrate upon was not when the event began or ended but (at 298) whether “the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded” (see also 391).  Thus the court admitted the exclamation “get me the police, please …” not simply because it was part of the incident in terms of time, but because it had been “forced from the deceased by an overwhelming pressure of contemporary event …”.  In so determining, the Privy Council disapproved R v Bedingfield (1879) 14 Cox CC 341, in which the court had excluded evidence that the murder victim, who had run out of a house with her throat cut, had said to her aunt “see what Harry has done”.

[30]      The law in England, which thus permits (subject to judicial control) proof of fact by way of a de recenti statement, was reinforced in R v Andrews [1987] AC 281.  There, the House of Lords allowed, as proof of identity, the hearsay evidence of a deceased person that he had been attacked by the accused.  After being stabbed, the deceased had made his way to the landing of a downstairs neighbour, who had phoned the police.  The police had arrived minutes later.  The deceased told them who had assaulted him.  Lord Ackner, delivering the only substantive speech, stressed (at p 300) that the test for admitting a statement as part of the res gestae was whether the “possibility of concoction or distortion [can] be disregarded”.  Exact contemporaneity was not the issue, but spontaneity was.

[31]      The issue of corroboration does not arise under English law.  It remains an important feature of Scots criminal law, with its emphasis on finding two separate sources of evidence.  It is within the context of this distinctive element that there developed an important distinction between a statement forming part of the res gestae and one which is only regarded as de recenti.  This was the focus in what was to be the critical decision of the Full Bench in Morton v HM Advocate (supra).  Prior to that case, and in line with the rationale in Greer v Stirlingshire Road Trs (supra) and the earlier cases, the court had been of the view that statements of a complainer made de recenti could provide corroboration of the complainer’s own testimony (McCrindle v MacMillan 1930 JC 56 and McLennan v HM Advocate 1928 JC 39). 

[32]      In McLennan, a child of 6 had testified to being abused.  Evidence about what he had said to his parents on returning home was admitted as proof of fact and thus potentially corroborative.  The Lord Justice General (Clyde), with whom Lords Sands and Blackburn concurred, stated (p 41):

“… it is a mistake to suppose that the evidence of the parents (if believed) regarding the explanations given by the boy with regard to his condition when he returned home do not provide good corroboration.”

 

In so saying, he referred to a passage in Dickson (supra, para 254) as confirming the position, but went on to found on paragraph 258 which stated, specifically in relation to the criminal law:

“Akin to the principle thus noticed, is that which in criminal cases admits proof of statements made by the injured party de recenti after the alleged crime.  Such expressions being the natural outpourings of feelings aroused by the recent injury, and still unsubsided, are a consequence and continuation of the res gestae and corroborate the party’s evidence for the Crown …” (emphasis added).

 

A distinction in England, noted by Dickson (para 259), between statements relating to the crime and those naming the perpetrator, was said not to be part of Scots criminal law.

[33]      In McCrindle, the complainer, who was aged 13, spoke to being indecently assaulted by the appellant.  Evidence was led of the complainer’s identification of the appellant to her parents within minutes of the incident.  Lord Morison, delivering the Opinion of the Court, which again included the Lord Justice General (Clyde) and Lord Blackburn, founded once more upon the passages in Dickson and followed McLennan in holding that this provided sufficient evidence of identification.

[34]      The sea change came with Morton v HM Advocate (supra), which was decided only three years before O’Hara.  The Full Bench included Lord Moncrieff, who was, not surprisingly therefore, to differ later from the Lord President (Normand) in O’Hara.  The only evidence of identification of the perpetrator of an indecent assault came from the complainer, to whom the appellant was a stranger.  She had made a de recenti complaint, although that could not at the time have contained any positive identification of the then unknown assailant.  The Lord Justice Clerk (Aitchison) delivered the opinion of the Full Bench, which included the Lord President (Normand).  None of the judges in McLennan or McCrindle remained on the High Court bench.  The court overruled McCrindle and disapproved of the dictum in McLennan, stating that these cases “proceeded upon a misconception as to the true character of corroboration”.  Although de recenti statements of complainers in sexual assault cases were admissible, this was said (at 53) to be limited to the purpose of demonstrating consistency, although also, it is worth adding, “to negative consent”.  However:

“A complaint de recenti increases the probability that the complaint is true and not concocted, … But … the evidence is admissible as bearing upon credibility only, and the statements of the injured party, although made de recenti of the commission of the crime, do not in law amount to 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.”

 

It is at the end of this Opinion that the court expressed its much celebrated view (at 55) that, in the practice of the criminal courts, the rule requiring corroboration had proved “an invaluable safeguard … against unjust conviction … from which the courts ought not to sanction any departure”. 

[35]      For the generations of lawyers weaned upon the distinction, possibly unique to Scots law, between a statement forming part of the res gestae and one de recenti, the law has long since been regarded as settled by Morton.  Res gestae contemplates the events occurring up to and including the crime libelled, but not reports by persons made after the event has ceased.  It was against that background of understanding, that the court came to analyse the circumstances in Cinci v HM Advocate 2004 JC 103.

[36]      The precise nature of the charge in Cinci (see para [15]) was that the appellant had assaulted the complainer, seized hold of her, forced her to have sexual intercourse against her will and had raped her.  A significant problem arose from the complainer’s complete loss of memory of the whole incident as a result of the effects of alcohol.  What was known was that the complainer had been taken to and left in a shower area by the tour guide escorting the party of which she was a member.  The manageress of the hostel, where the party was staying, found a shower cubicle locked.  When she called out to the occupants to see if everything was alright, the complainer had replied “No ‒ help me”.  On the manageress opening the door, the complainer and the appellant were found naked.  The complainer was “scrunched up” in a corner, very upset and crying.  She said “He raped me”.  There was forensic evidence to prove that sexual intercourse between the complainer and the appellant had taken place. 

[37]      The trial judge in Cinci directed the jury that the statement “He raped me” could be used as proof of that fact, as it formed part of the res gestae.  Were the law to have been that in O’Hara, the earlier civil cases or that of England, that may well have been correct.  However, standing Morton, which was not expressly referred to in Cinci, although it formed the basis of the passages cited from Walker & Walker (Evidence (2^nd ed) paras 8.3.1‒2), the opposite had to be the case and the conviction was quashed.  There the law undoubtedly rests in the absence of legislation.  The critical determining feature is whether the statement is part of the event itself, as distinct from being a later report, even if the terminus of the event may be a matter for the jury’s determination (Cinci, Lord McCluskey at para [21]).  The Lord Justice Clerk (Gill) stated (at para [9]) that:

“The res gestae principle is founded, at any rate on the older Scottish authorities, on the idea that the words spoken are part of the event itself.  Words can have that significance if they are the spontaneous exclamation of the complainer or an onlooker (Ewing v Earl of Mar (1851) 14 D 314).  If the words of a third party that are part of the event are spoken to by one who heard them, they constitute evidence of their contents (Greer v Stirlingshire Road Trs (1882) 9 R 1069).”

 

The Lord Justice Clerk continued (at para [12]) by questioning the dictum of the Lord President (Normand) in O’Hara v Central SMT Co (supra) to the effect that a de recenti statement could be treated as proof of fact.  Albeit that the report of the complainer in Cinci was, certainly on one view, a spontaneous exclamation, it was, the court held, not part of the res gestae and could not be used as proof of fact.  The defining moment was deemed to be the point at which the alleged rape (ie the intercourse) had ended.  Presumably, had the complainer used the words “he is raping me” moments earlier during intercourse, the law would have dictated a different outcome.

[38]      In the present case, the trial judge’s directions made it clear that, for the evidence of Miss Gribben about what Mrs Rooney said to be treated as part of the res gestae, the jury had to accept that what was said had been uttered by Mrs Rooney under emotional pressure and spontaneously whilst the events charged were unfolding, otherwise the evidence of what she had said could not be used against the appellant.  The judge made it clear that it was only statements which were made as part of the events happening that could be used as proof of fact. 

[39]      It is reasonable to postulate that, for the purposes of identifying the res gestae, the event commenced with the appellant running out of the pathway at number 4 and apparently chasing both the deceased and the complainer.  This is so even if the Crown did not charge the initial chase with the knife in Fulwood Avenue as part of the crime.  Evidence of this assault was led without objection.  Anything said thereafter in the vicinity of the event, but not necessarily at the precise locus of Bridge Street, would be part of the res gestae until such time as the incident ended.

[40]      It is also reasonable to hold that the jury would have been entitled to conclude that the incident only ended when the appellant returned to the house from which he had emerged in the first place.  Competent evidence could therefore be led about what had happened before then in order to explain both the circumstances of the murder, and the attempted murder, and to identify the perpetrator.  This would include the fact that Mrs Rooney, the appellant’s partner, had emerged from her house at or about the same time as the appellant and was in a frantic or hysterical state.  That state, and indeed her presence on the road, could only be explained by hearing evidence of what she was complaining about.  That evidence in turn revealed that she was frantic because she thought that her partner, the appellant, had chased the deceased and the complainer into Bridge Street.  Her state, coupled with her explanation to Miss Gribben, pointed towards the reason for, and the appellant’s involvement in, the incident.  All of this was capable of being used as proof of those facts and thus of being corroborative of the complainer’s identification of the appellant. 

[41]      These facts could be spoken to by any witness to them.  Mrs Rooney’s denial, of what Miss Gribben said she had said, was irrelevant to any consideration of the competency of the evidence as forming part of the res gestae and thus as proof of fact.  It is not simply a complainer (or a deceased) who is competent to speak to statements forming part of the res gestae.  Any witness may do so, whether or not they or the maker of the statement were capable of seeing, in the case of this type, the actual stabbing as distinct from an immediately precipitating incident (the chase) or its aftermath (the return home). 

[42]      Especially in light of the appellant’s alibi, and in any event, evidence of the appellant’s alleged return to the house at number 4 and his remarks to Mrs Rooney also formed part of the res gestae in so far as they pointed towards the perpetrator of the incident being the appellant.  In these circumstances, there is little difficulty in holding that what Mrs Rooney did and said were all part of the res gestae and could be used by the jury as proof of the identity of the chaser and, ultimately, the murderer of the deceased.  For these reasons, the appeal must be refused.

[43]      The statement by Mrs Rooney was not the only evidence which was capable of corroborating the identity of the appellant as the perpetrator.  For example, it was made clear by Miss Gribben and others that the person who had run back from the scene of the murder had taken Mrs Rooney by the arm, addressed her in a manner which would suggest that he was her partner, and escorted her back into what was proved to be his house.  There does not appear to be any substantial reason why that evidence could not have been regarded as corroborative of the complainer’s identification of the appellant as the assailant.  In so far as the judge’s charge can be legitimately criticised, it is in the giving of an undoubtedly erroneous direction in the appellant’s favour to the effect that the jury could only convict in the event of their accepting Miss Gribben’s evidence of what had been said.  In the event, the jury must have accepted the complainer’s evidence of identification.  There was undisputed evidence, capable of corroborating that identification, that, whoever left the scene of the murder, had returned to the vicinity of number 4, taken hold of Mrs Rooney and escorted her indoors.  Taking an overall view of the circumstances (Brodie v HM Advocate 2013 JC 142, LJG (Gill) at para [42]), the court is quite unable to hold that a miscarriage of justice has occurred.