Determination following examination of facts in HMA v Alan McDonald

At the High Court in Edinburgh today, 18 July 2018, Temporary Judge Craig A L Scott QC found that the accused Alan McDonald raped and indecently assaulted two children following an examination of facts, and made no order in terms of section 57(2)(e) of the Criminal Procedure (Scotland) Act 1995.

Judge Scott made the following statement in court:

“Alan McDonald was indicted on four charges alleging sexual and physical abuse directed towards AR and PD over periods between 2001 and 2009.

“At a preliminary hearing on 31 May 2018, the court determined that the accused was unfit to stand trial due to physical and mental health problems. In the circumstances, the court ordered that an examination of facts should take place in terms of section 54(1)(b) of the Criminal Procedure (Scotland) Act 1995.

“The examination of facts proceeded before me in the High Court of Justiciary in Edinburgh on 17 July 2018. Despite his health difficulties, the accused was initially in attendance.

“I was advised by parties that the question of identification could not be agreed and that, accordingly, the accused’s presence in court was necessary but only for a relatively short period. In the event, identification was spoken to by the first two Crown witnesses and the requisite order under section 55(5) of the 1995 Act having been made, the examination of facts proceeded thereafter, in the absence of the accused.

“Throughout the hearing, the accused’s interests were represented by senior and junior counsel. Once the Crown evidence had been led, I allowed an adjournment, primarily to enable the Crown to consider its position as regards the charges on the indictment. Following that adjournment, the Advocate Depute moved to desert charge one and to make various amendments to the remaining three charges. He then formally closed the Crown case.

“Senior counsel for the accused was content that the amended indictment was apt to reflect the evidence led. He indicated that no evidence was to be led on behalf of the accused.

“In respect of the sufficiency of certain evidence, senior counsel contended that the final three words in charge two, viz. ‘to his injury’ had not been established on the basis of the evidence led. He also submitted that the averments in charges two and four concerning the accused’s penetration of AR’s anus had not been established by corroborative evidence.

“In that connection, senior counsel drew the court’s attention to AR’s evidence on that matter. Towards the end of examination in chief, AR had indicated that when such penetration had taken place, no one else was present other than the accused and AR himself. Accordingly, senior counsel argued that AR’s evidence had not been and could not be corroborated.

“For the rest, senior counsel accepted that the court’s determination as to whether the acts libelled had been established to its satisfaction beyond reasonable doubt would be informed largely by issues of credibility and reliability. The evidence of the Crown witnesses had been challenged and tested as was appropriate.

“The advocate depute invited the court to make a finding that the acts set out in the indictment had been committed by the accused. He characterised the accused’s behaviour as amounting to a clear course of conduct having regard to his relationship with the two complainers and the home environments in which the offences had taken place.

“In relation to charge four, on the evidence, the art and part rape of PD had been established by way of PD’s evidence and the testimony of AR.

“When it came to the evidence supporting the allegation of sodomy as between the accused and AR, the advocate depute insisted that there was corroboration of the actus reus. There was the direct evidence of AR which could be taken along with PD’s evidence to the effect that she was there when it happened.

“The advocate depute submitted that it was open to the court to reject AR’s evidence about no one else being present (standing the clear evidence to the contrary from PD) and yet to accept the remainder of his evidence, much in the way that juries are commonly directed that they can accept and reject parts of a witness’s evidence.

“The advocate depute also maintained that the aggravation ‘to his injury’ at the end of charge two had been made out in the evidence. It was, he submitted, reasonable to infer that the penetrative act libelled would cause pain in the case of a child complainer.

“In any event, AR had testified that he ‘… was screaming for him (the accused) to stop’ and referred to residual difficulties in defecating. PD had also described how AR was crying when she had seen him ‘face down on the bed’ with the accused ‘close to him with an erect penis’. She stated that AR had been crying in a ‘hurt way’ as if he were in pain.

“Were the court to make the finding desiderated by the Crown and set out in section 55(1) of the 1995 Act, the advocate depute submitted it should, thereafter, make no order all in accordance with section 57(2)(e) of that Act.

“I deal, firstly, with the evidence of PD. I found her to be a credible and reliable witness. It was plain that she was doing her best to tell the truth about difficult subject matter and to describe events as accurately as she could recollect. She gave her evidence in a straightforward manner. There was no attempt, in my estimation, to embellish or exaggerate, nor did I form the impression that she was fabricating any of her evidence.

“Broadly speaking, I reached the same conclusion as far as AR is concerned. He gave his evidence via the video link and the resultant quality in presentation wasn’t what it might be largely due to a time lag between questions and answers. However, that could in no way impact upon the witness’s efforts to ‘tell it as it was’ in a plain and sometimes compelling fashion.

“When it came to the evidence of the witness JM, I believed that evidence and accepted it as reliable. Her evidence provided a sound basis for the addresses involved and also corroborated AR’s evidence in regard to the conduct set out in charge 3.

“Accordingly, I was comfortably persuaded that the evidence of these witnesses constituted a truthful and accurate foundation for proof of the acts described in the amended indictment.

“In addition, in my opinion, for the reasons put forward by the advocate depute, there is sufficient evidence to support all of the averments in the indictment. The evidence of AR and PD provides corroboration in respect of each of charges two and four.

“In particular, notwithstanding senior counsel’s argument to the contrary, I was satisfied that PD’s testimony provided corroboration of anal penetration by the accused as libelled in charge two and that the aggravation at the very end of that charge has been established.

“Therefore, I am satisfied beyond reasonable doubt that the accused committed the acts set out in the amended indictment and constituting the offences libelled therein. I am also satisfied, on the balance of probabilities, that there are no grounds for acquitting the accused.

“I have made a finding to that effect, all as required in terms of section 55(2) of the 1995 Act. On the Crown motion and in the whole circumstances of this case, I have made no order in terms of section 57(2)(e) of the same Act.”