High Court Memorandum: Agar Gulbis v. Lauris Gulbis - Evidence Issues

This memorandum addresses the case of Agar Gulbis and Lauris Gulbis, where the husband is accused of sexually aggravated assaults against his wife. It examines the admissibility of various pieces of evidence, including witness testimonies from police officers, medical professionals, and neighbors, as well as forensic reports and incriminating statements made by the accused. The analysis delves into the application of the hearsay rule, exceptions like res gestae, and relevant Scottish legislation, such as the Sexual Offences (Scotland) Act 2009 and the Criminal Justice (Scotland) Act 2016. The memorandum considers the mental state of the victim, the nature of the injuries, and the potential for Lauris Gulbis's conviction. It also discusses procedural aspects, such as the rights of the accused and the collection of evidence. The report concludes with an assessment of the strength of the evidence and the potential approach to be taken in response to the charges.

MEMORANDUM
MEMORANDUM TO: XYZ, High Court in Her Majesty (Judge)
FROM: XYZ, Advocate Depute
DATE: July, 24 2018
FILE Number: XXXXX
SUBJECT: A case of Agar Gulbis and Lauris Gulbis, where the husband has made
sexually aggravated assaults against his wife.
Objective
The memorandum represents the potential issues of admissibility of the evidences
along with the competency of witnesses. It further assesses the evidence’s strength
and the approach which could be considered with the response of the charges.
Facts
a) The accused (Lauris Gulbis) is accused of attempting sexually
aggravated assault on his wife (Agar Gulbis).1
b) Agar has scarves of burns on her breasts, using a lit light bulb.
c) There are many evidences to prove that the accused, Lauris has
caused all the harm to Agar.
d) There are also witnesses who support Agar.
e) The convictions had not been disclosed to the Law Society of
Scotland.2
Issues
1 'Sex, Young People And The Law' (Nhsborders.scot.nhs.uk, 2018).
2 'Investigation And Prosecution Of Sexual Crimes: Review - Gov.Scot' (Beta.gov.scot,
2018).

1) The historic ruling states that a husband could be charged for raping their
wives, even when the couple live together.
2) The husband who is convicted of the sexual assault can be put into criminal
trial.3
Assumptions
1) According to the Scotland Act of 2009, sexual offences are reformed by the
Scots law, which helps with the consent and provides confirmation that from
the victim physical resistance is not needed, for the offence to be committed.4
2) Lauris can be convicted as a rape accused.5
Thus, according to this Act, Agar could have complained right in 2015 and the
problem could have not increased at all.
Admissibility and Witnesses
The witnesses are listed below:
1) Sergeant Elspeth Sawyer, Police Scotland Domestic Violence Unit, Glasgow
2) Mary Moran
3) Ronnie Atkins
4) Darren McPhee, proprietor of “Darren’s Dodgems
5) Mrs Inese Rubenis (Agar’s Mother)
Under Criminal Justice (Scotland) Act 2016, the following will be recorded:
 Arresting time and place.
 Nature of the offence.
 Arresting reason
 By whom the person was advised of rights
 Name
3 'Judges Rule On Rape Within Marriage' (HeraldScotland, 2018).
4 'Equally Safe - Reforming The Criminal Law To Address Domestic Abuse And Sexual
Offences' (Gov.scot, 2018).
5 'Sexual Offences (Scotland) Act 2009' (Legislation.gov.uk, 2018).
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 Date of Birth
 Place of Birth
 Nationality
 Person’s Address
 Reply by the Arrested Person.
 Time and place of the place transported to.
Under Arrest Authorisation from Criminal Justice (Scotland) Act 2016, Lauris initially
is ‘Not Officially Accused’ and will be sent for a set of tests, based on the suspicion.6
Possible Issues
(1) Hearsay (HS)
HS rule: The evidence of complaint is admissible pursuant according to s 66 for the
Evidence Act. Because, for the evidence of the accused or the sexual assault
complainant. It is an exceptional evidence for the HS rule. Only when the
complaint is, crisp in the memory, it is admissible. Based on the Evidence Act,
the High Court considered the ‘fresh’ hours and days instead of weeks and
months (Graham v The Queen at 608 [4]). The complaints that are historical
aren’t admissible until it has some restored complainant’s credibility pursuant
to s 108(3). Kara Shead, 'Responding To Historical Child Sexual Abuse: A
Prosecution Perspective On Current Challenges And Future Directions' (2014)
26 Current Issues In Criminal Justice.
On 20th March 2018, t he reports provided from the Psychiatrist, Diana
Donaldson, MD, ChB, PhD, FRCPsych, suggest that an experienced specialist
has examined Mrs Agra Gulbis. The therapist states that there are extreme
post-horrible pressuring issues that are causing Agar to constantly attempt to
suicide. Mrs Gulbis was admitted to Gartnavel Royal Hospital as a mental
patient on 26th February 2018, from Gartnavel General Hospital. Her mental
wellbeing decayed altogether on 25th February after a visit by her nearby
neighbour. According to the analysis of Agar today, the court is reported
6 'Police Service Of Scotland' [2016] Police Notebook – Form 099-001.
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about her current condition and it is extremely plausible that this will
hazardously increase her self-destructive sentiments, regardless of whether
she needs to give prove with the advantage of exceptional measures. And
Mrs Agar Gulbis is a patient in the hospital named as, Gartnavel Royal, under
the Mental Health (Care and Treatment) arrangements based on the
(Scotland) Act 2003.
As per 25th February 2018, the testimony of Dr Edna Evans, MD, ChB, FRCP, the
Consultant Physician of Agar from the hospital, Gartnavel General Hospital
Glasgow, states that, on 20th February 2018 at 9.00am Agra Gulbis is confirmed
to have had sexual intercourse in the past 12 hours, because the semen traces of
her husband were found in her vagina. This proves that Lauris is an accused. On
the other hand there were bruises on the forearms and shoulders of Agar Gulbis.
These injuries are caused due to forced sexual attempt. Moreover, Agar’s left
side of the head was bruised, due to being consistently struck to a blunt
instrument. Even burn scars on her left breast is found, which is about 2 inches
square. This injury might be caused between two and three years from now, with
an object like a lit light bulb. The injury doesn’t seem to be unintentional.
The testimony of Pat Boyd, BSc, PhD, Police Scotland Forensic Scientist’s report
on 28th February 2018 prove the results against Lauris. For example the DNA
test, fingerprints, hair fragments and the blood residues found on the bronze table
lamp.
Mary Moran's testimony state that she despised Friday evenings in view of Lauris'
yelling, which she could hear through the divider between the two rooms. She
didn't get much rest on any Friday night till it was 3.00 am of Saturday. In any
case, things went to a genuine head on the nineteenth of February – that was a
Friday. She couldn't get the chance to rest. There was yelling and uproar from
the moment Lauris entered home from the bar. Sooner or later, Mary heard
Lauris say that, when compared ot her secretary, Agar is not good and he
sounded more hateful than irate and it was even unpleasant. I enquired about
Agar through telephone, but she found no response. Only after 15 minutes she
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got a call from Agar, which was extremely hard to hear. But, Mary understood
that Lauris was snoozing and it was all good now, but still Agar was crying wildly
and she was scared and said "Yes, thank you". She then gathered her courage
to go round to Agra's house to see she was alright and discovered the police
there.
From Mary’s help the police got many letters from a little cabinet. Among several
letters, there was a letter from Lauris to Agar, which stated, "The more I hit you,
the more you see sense. It's a turn on, as well". The cop swung the letter to
Lauris and asked, its meaning, to which Lauris answered, "Exactly what it says".
This shows that Lauris agrees that he tortured Agar. Then, the light was found,
which was the proof for Agar’s scars.
The testimony of Sergeant Elspeth Sawyer, Police Scotland Domestic Violence
Unit, Glasgow state that he had come in contact with Agra Gulbis, in the mid-
year of 2015, when Agar Gulbis went to the police headquarters whining that the
accused had persuasively taken off her garments to get to her bosom and she
had then been scorched there with a light. Agar didn’t give chance to see her
bosom and declined to carry out any investigation by the police specialist,
because the accused was his husband. She likewise declined to help any
charges against his husband saying something like, "I can't. She additionally
asserted not to have any companions or family who could encourage her and
help her. Agar was identified to have all the indications of a battered lady: old
wounds about her body; dull glasses most likely covering a bruised eye. She
was just 5 feet tall, and unequipped of taking care of her circumstances. The
officer couldn't do anything, as she was not supporting the cops. So the points
noted at from Agar’s statement were destroyed after a couple of months, when
she didn’t turn up.
Again on 20 th February 2018, the cop were notified about the incident in Agra
Gulbis’ home, where she was found injured. The accused Lauris was drunk and
sat on a seat.
According to the testimony of Constable Hobbins, Lauris was accused for s 48 of
the new Criminal Justice (Scotland) Act 2016 (the 2016 Act), for having a
barbeque branding iron in his pocket of the denounced's coat. Further, Lauris
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stated that, "I have to control the bitch, don't I?", he said. At that point, after
stopping for a moment and a snicker he stated, "What do you think, you fat bitch.
He declined to answer to any questions from the cop. Based on s 32 (4) and (5)
of the 2016 Act he was questioned. He accused Agar of assaulting him and to
safeguard himself he hurt Agar. Lauris also stated that he has got his name on
the barbeque rod and Agar at times like to get burnt, in places which are not
visible to the people. He bladed her that, she is not the wee innocent. So, he had
burnt her at times and show her who the boss is. Lauris doesn’t find anything
wrong in this.
The testimony of Mrs Inese Rubenis shows that her daughter was not happy in
her marriage, as she saw her daughter Agar being sad right after giving birth to
Bo.
According to the testimony of Darren McPhee, proprietor of "Darren's Dodgems"
He speculated that there were kids who were messing around and attempting to
hamper speed limiters on the cars. He didn't know why they weren't in school.
Agra Gulbis was there with her daughter and were enjoying with each other. All
of a sudden, one of the raucous children ran directly into Agra's car. The car was
going so swiftly that it cleared out the floor and wound up half over Agra's car.
The edge of the windscreen had hit Agra appropriately on the left half of her face
and when Darren discovered her she was wedged in, and attempting to ensure
herself and her daughter. The children fled and I was extremely stressed,
despite the fact that it wasn't my blame. Darren took Agra and the small young
lady into my caravan and gave them tea and juice. Her head wasn't draining yet
she was somewhat stupified. Darren could see she was better so he gave her a
pack of frozen peas to put on it. She said that she didn't have to see a specialist.
She was hurt in her shoulder. Agar was not able to move her top down or
anything. She was somewhat humiliated and I would not like to drive it. Things
were sufficiently awful. Later she felt much better soon. Darren gave her and the
small one a lift home after around 60 minutes to relax and was happy that she
would not like to take it any further, despite the fact that it wasn't my blame.
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However, the main purpose of leading would be to sentence the accused with
criminal trials and prove him guilty in the court. All the proofs are against Lauris and
Even the statement of Agar after the last incident is cross checked and evaluated, to
punish the criminal. Moreover, the evidences against Lauris are non-exculpatory.
The Scotland law has reform its scot law for supporting the sexual offences against
women.7
HS rule’s Exceptions:
(i) Res gestae: Scotland law’s utilized statements.
Statutory: Section 1 of the Sexual Offences (Scotland) Act 2009, s 48 of the new
Criminal Justice (Scotland) Act 2016. Lauris was presented in the court under the
Section 28(2) or (3), from the Criminal Procedure (Scotland) Act 1995, Under
Section 288C of the Criminal Procedure (Scotland) Act 1995, Lauris can only take a
lawyer and cannot defend himself as a lawyer. Under Section 18 from the Criminal
Procedure (Scotland) Act 1995, external body parts impressions and prints of the
suspect will be collected based on Section 1 2016 Act.8
Based on the Criminal Justice (Scotland) Act 2016, Lauris who is the suspect will be
provided the right to have legal advice, prior to the Scotland Police starts
questioning. 9
(ii) Statements by accused
- Consensual Act,10
- Reply to charge.
Res gestae incorporates articulations and the involved people’s conduct, to observe
their activities, which the charges identify with. The statement should be very closely
identified with the activity or the situation, such that some portion of the thing being
done as opposed to a resulting statement can be framed. Res gestae is
7 'THE SEXUAL OFFENCES (SCOTLAND) ACT 2009'
8 'Police Station Interviews Advice And Information From The Law Society Of Scotland'
[2015] The Law Society of Scotland.
9 'Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2017 - Hansard'
(Hansard.parliament.uk, 2018).
10 'Know Your Rights' [2018] Police Scotland keeping people safe.
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communicated comprehensively, along with the unconstrained explanations which
are stated when the situation or the event has occurred. Because of its proceeding
with affect and prohibitively, concerning just that which was a piece of the
demonstration.
From the evidence in court, Lauris is blamed for harming Agar. Statement admissible
if:
(i) There is satisfaction that all the evidences are irrelevant.
(ii) If it is possible that the accused might run self-defence for the defence,
against all the Charges.
(iii) That the accused, is a qualified lawyer. But, he can’t select to defend
himself under the Section 288C of the Criminal Procedure (Scotland) Act
1995.
(iv) . On the other hand, when he was 19 years old and while still lived in
Latvia, was convicted on a couple of separate charges of sexual assault,
which involved burning a lady with a lit cigarette lighters close to her
breasts. These convictions were not disclosed to the Law Society of
Scotland.
(2) Witnesses
There is a solid evidence against Lauris, which is distinct and there is no doubt that
the presented witnesses have stated any false statement. The witnesses have stated
the truth and they have no possible benefit, to tell a lie. To support the statement of
the other witnesses, the statement of Sergeant Elspeth Sawyer, Police Scotland
Domestic Violence Unit, from Glasgow, plays a prominent role. In spite of the fact
that, some of the witnesses like the mother of Agar, Mrs Inese Rubenis and Ronnie
Atkins have problem to talk English, but still this won't bar them– if necessary, a
mediator might be allotted to help with correspondence. The witness Ronnie Atkins
is too young and at the time of incident shew was too young. Even this won’t harm
the statement of the witness.
Lauris is held guilty from his own letter which was found by the police from the
Gulbis’ house, which states, “The more I hit you, the more you see sense. It’s a turn
on, too”. There are more chances that, Lauris is held guilty. Regardless of whether it
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was consensual for a couple to do as they wish for satisfying their sexual needs. 11
The statement provided by Mary Moran supports Agar and not Lauris. Thus, the
consensual needs to satisfy their needs can be discarded.
But, Agar has denied that, the sex between them was not consensual and thus it will
be considered as Rape according to the Scotland law Act 2009.12
(3) Character Evidence (CE)
CE, along with the complete information of the individual’s past convictions and their
reputation, is highly inadmissible. Because of collateral problem. Therefore, the
evidence that Lauris and Agar married each other with their own wish doesn’t
support him. Because, right front he birth of Bo, there have been incidents
encountered with proof that state that Agar is not happy with Lauris. The first
evidence is Agar’s mother who have seen Agar being sad, and have heard Agar
telling her that she was hurt by Lauris on her private part. This incident is noted right
after giving birth to Bo (Lauris and Agar’s Child). But, her mother don’t know the
exact place where she was hurt. CE could however, can be admitted where:
(i) Has issues in his conduct and can be charged (s101(2) CP(S)A1995);
(ii) Committed Rape.
Agar is a simple and a humble lady who wants doesn’t want to bring his husband’s
name out, to the police for hurting him. She is not a type of lady who takes revenge
or wants to control his husband. Her character is clean, which is evident from the
neighbour’s word of mouth.
Lauris has no criminal records and is clean. The only thing that is known is that, he
has changed after the birth of their kid, which is evident from his behaviour. His
failure in career and financial stress has made him violent. He tends to get irritated
when their kid cries and gets disturbed. Resulting to blame Agar for not using the
contraceptive and ruining his life. This act of behaviour is evident by their neighbour,
Mary Moran.
11 'Rape And Sexual Assault In Scotland - Mygov.Scot' (Mygov.scot, 2018).
12 'Sexual Offences (Scotland) Act 2009 2009 Asp 9'.
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But, it is not known that when he was 19 years old and when he was still lived in
Latvia, was convicted on a couple of separate charges of sexual assault, which
involved burning a lady with a lit cigarette lighters close to her breasts. To the
Law Society of Scotland, these convictions were not disclosed.
(4) Opinion Evidence (OpE)
OpE, refers to the inferences from the realities as opposed to a straightforward
record of what a witness has seen or heard, which is normally unacceptable. Thus,
the evidence about Mary Moran on 20th march 2018 was admissible. But, there are
possibilities of creating a twist in the story that Mary was against Lauris and wanted
to punish him for personal vengeance.
(5) Real Evidence
Real evidence is admissible when properly obtained. Accordingly, to the forensic
department’s reports, the DNA, blood test, fingerprints and so on are considered as
related and are admissible.
Approach
1) Burdens and Standards of Proof
The prosecution holds the evidential and influential burdens. The evidential burdens
implies they just require leasr evidences for raising any problem in the court room
(Jayasena v R); in any case, influential burden requires to demonstrate a definitive
probandum past sensible uncertainty (Lambert v HMA). On the off chance, the jury is
left with question which are more than 'stressful/ whimsical' and it must be cleared
(Irving v Minister of Pensions).
2) Consensual Act
Based on the admissibility, the evidences which supports the defence are as follows:
(i) Lauris’ statement regarding barbeque rod used on Agar.
(ii) Lauris’ behaviour towards Agar, by her neighbour.
(2) Corroboration
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The important facts, for the identification of crime the actus reus and mens rea are
used to identify the criminal. Thus, the actus reus and mens rea are justified by the
prosecution (Lockwood v Walker), In other words, the evidences are proved based
on a couple of independent sources (Morton v HMA). The evidence is not required to
be the direct evidence, however it could be circumstantial (Smith v Lees).
Under Section 7 Authorisation refused, Lauris wil be charged with the offence and
can be detained from bail conditions (under Section 28 (1A) Criminal Procedure
(Scotland) Act 1995).
Supporting Evidence and important facts
Charge 1:
Assaulting Agra Gulbis, then on her severe injury on her breast forced against the lit
light bulb.
Actus Reus: If Mary Moran refuses that there were any domestic assaults taking
place in the next door, then Lauris could be freed.
Mens Rea: If Mary Moran’s statement is connected with the other witnesses, then
there is need to produce new and evident proof, to sentence punishment to Lauris.
Identification: If Lauris confessed then, no corroboration is needed (Stewart v HMA).
Charge 2:
Charge of sexual offence on Rubenis or Gulbis, at the Flat 2/R 18 Afton Terrace,
Clydebank, on 19th or 20th February 2018. This supports the Section 1 of the Sexual
Offences (Scotland) Act 2009.
Actus Reus: If Agar proves that she was not ready to have sexual relationship with
Lauris due to his behaviour, then the sexual relationship between the couple will be
considered as rape.
Mens Rea: If the reports prove that the injuries on Agar were consistently with being
forced to have sex, then Lauris is held accountable can be convicted.
Lauris will be arrested under Section 288C of the Criminal Procedure (Scotland) Act
1995, for sexual offence. He will be informed about the court proceedings and it has
to be conducted with the help of a lawyer only.
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Under Section 18 from the Criminal Procedure (Scotland) Act 1995, Lauris’ palm
prints, fingerprints and other impressions and prints of the external body parts will be
collected is arrested under Section 1 2016 Act.13
Charge 3:
Repeatedly striking on Agar on 20th February 2018, at Flat 2/R 18 Afton Terrace,
Clydebank, using a table lamp, on her severe injury.
Actus Reus: If Lauris’ behaviour towards Agar is proved to be disrespectful then
he can be caught hold for domestic violence on Agar. Mary, their neighbour is the
witness who have heard Lauris mistreating Agar. If this is proved then, Lauris can
be sentenced to jail for a long term, as it proves a lot of agitation against Agar.
This could be considered as the reason for an unhappy relationship.
Mens Rea: If the forensic report are proved that the lamp was used for hurting
constantly on Agar, then he is convicted for sure.
Identification: The reports have been identified to have intentional force and harm
on Agar, by constantly striking on her.
Charge 4:
Near 18 Afton Terrace, Clydebank, Lauris had an offensive weapon, such as
barbeque meat branding iron which had his name on it and this contrary to the
Section 47 (1) of the Criminal Law (Consolidation) (Scotland) Act 1995.
Actus Reus: The statement of the witness Mary Moran, and Sergeant Elspeth
Sawyer, Police Scotland Domestic Violence Unit, Glasgow are strong proofs that
provides corroborated evidence regarding connection of causing harm to the Agar.
On the other hand, Darren McPhee, proprietor of “Darren’s Dodgems’s statement
also shed some light on the assaults of Agar.
Mens Rea: See Charge 1 reasoning.
If Agar provides her oral evidence and is capable of convincing the cops that Lauris
had never harmed her then, there will not be any case against Lauris despite of other
evident proofs.
Identification: The medical and forensic reports are the proof for the statements of
the witnesses and Agar, against Lauris.
13 'Criminal Justice (Scotland) Act 2016 (Arrest Process) Standard Operating Procedure' [2018] Police
Scotland keeping people safe.
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