HER MAJESTY'S ADVOCATE v. DARREN SMALL

b. possession in a public place and without reasonable excuse of an article with a blade or a sharp point (a knife) contrary to Section 49(1) of the Criminal Law (Consolidation) (Act) 1995.

[2] By Minute date 23 December 2013 under Section 71 of the Criminal Procedure (Scotland) Act 1995, the accused intimated certain preliminary issues. For the purposes of this note, the relevant part of the Minute is paragraph 2(c), which foreshadowed an objection to the Crown leading certain evidence of what the complainer had been heard to say at the time of, or shortly after, the alleged robbery.

[3] The matter called for a First Diet before me on 21 January 2014 and I was invited, on joint motion, to continue consideration of it to the next day to allow the relevant witnesses to attend.

[4] When I sought clarification of the point to be argued, it became apparent that the point to be taken was not (as it appears the Crown had thought) that the evidence in question did not fall within the res gestae or de recenti exceptions to the bar against hearsay, but instead that the class of cases in which such evidence could exceptionally be admitted was limited to those of a sexual nature (see further below).

[5] Furthermore, I understood that although there was a live issue as to the timing of the statements by the complainer (which would determine whether they were part of the res gestae or had been uttered de recenti ) it was accepted that that would fall to be determined by the jury, in the light of the evidence itself and appropriate directions.