HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
OWEN McLEOD KEARNS
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
18 December 1998
On 2 July 1997 the appellant was found guilty after trial in the High Court at Glasgow on a charge in which it was alleged he had assaulted the complainer, twice attempted to rape her, raped her twice and also forced her to submit to oral intercourse. He was sentenced to nine years detention.
The complainer gave evidence that about 1 a.m. on 7 July 1995 she had been given a lift to a bus stop in Mountblow Road, Clydebank after a night out. She walked along a path which led to a block of flats at Park Court where her boyfriend lived. After she had obtained no answer when she pressed the buzzer at the entrance, she began to walk down the road, hoping to get a taxi to her home. She then decided to go back to put a note on her boyfriend's car. As she was walking towards the flats, she became aware of a man running up behind her. When he came up beside her he seized her and pushed her down on to the grass. As to what happened thereafter, the complainer spoke to the terms of the charge which set out a graphic account of what the trial judge describes in his report as a "systematic, brutal and degrading attack".
At the trial it was not in dispute that the complainer had been subjected to this attack. The point at issue was whether the jury were satisfied that the appellant was the perpetrator.
For the appellant, Mr. Welsh said that there were two sources of evidence on which the Crown were able to rely as incriminating him. The first was the evidence of the complainer herself. The second was the evidence of police officers as to statements made by the appellant in the course of the last of three interviews later on the same day and following his detention under section 14 of the Criminal Procedure (Scotland) Act 1995. (It should be added at this point that the appellant repudiated this statement, although he did not deny making it. He said in evidence that he had been extremely drunk and had no recollection of events. The police officers had been aggressive towards him. They had told him what happened, and had persuaded him that he had attacked the complainer).
Mr. Welsh submitted that the trial judge's charge was deficient in respect that he had failed to direct the jury that they should scrutinise the evidence of the complainer as to the identification of the appellant with special care, owing to the risk that she might have been in error. Mr. Welsh accepted that it was within the discretion of the trial judge to give the direction, but he maintained that he had not acted reasonably in failing to give it. Instead he had merely given the jury general directions that it was for them to decide what evidence they accepted as credible and reliable. According to the evidence, the attack on the complainer had taken place in an area where there was dense vegetation with a hill on one side of the path. The complainer had given evidence of being dragged into dense undergrowth among trees. Mr. Welsh said that he had suggested to the complainer in cross-examining her that her identification of the appellant was in fact based not on her recall of the person who had carried out the attack but on the fact that she had seen the appellant at an earlier stage when he had got out of a white car as he was returning home. The appellant gave evidence that he had done so.
Mr. Welsh pointed out that the trial judge had not even given the direction which was described by the court in McAvoy v. H.M. Advocate 1991 S.C.C.R. 123 as "the bare minimum which was required". In that case the trial judge said to the jury:
"Again I think it is suggested that although neither of these witnesses was not genuine, it was really a case of mistaken identity. Undoubtedly in cases of identification you have to be careful as to what conclusions you reach".
Mr. Welsh pointed to the decision in Webb v. H.M. Advocate 1996 S.C.C.R. 530 in which it was held that there had been a miscarriage of justice where the trial judge had failed to give the sort of directions which were referred to in McAvoy. Mr. Welsh accepted that there was no required formula for such directions. The trial judge could have taken the alternative course of pointing out the relative strengths and weaknesses of the evidence of identification (cf. Chalmers v. H.M. Advocate 1994 S.C.C.R. 651) but had not taken this course either.
We do not consider that this ground of appeal is well-founded. The opinions delivered in the cases founded upon by Mr. Welsh do not require that whenever the prosecution rely upon identification evidence there is a requirement to warn the jury to take particular care in view of the risk of mistaken identity, any more than they require such directions to take a particular form. The decided cases contain observations as to the type of directions which the trial judge may consider it appropriate to give according to the nature of the particular case. The need for any such direction, the form which it should take and the extent to which it should be elaborated depend on the facts of the particular case.
In the present case it is clear from the report that the trial judge had considered whether to give the jury a warning about the risk of mistaken identity. In considering the evidence, it has to be borne in mind that the complainer's identification of the appellant as her assailant did not rest upon a momentary glimpse of him. She gave evidence as to a protracted sexual attack upon her. The Advocate depute pointed out that, according to her evidence, it began soon after she had been dropped near her boyfriend's flat at about 1 a.m. She said that after the attack had come to an end she waited for about five minutes before making her way to his flat. He said in evidence that she arrived there at about 2.30 a.m. The mother of the appellant, who was one of a number of residents of Park Court who gave evidence as to hearing "terrible screams" and the cry of a female saying such things as "Mother, mother, help me", said in evidence that she was so alarmed at the repeated pleas for help that she opened her window and cried out "Stop" more than once. She timed the incident at about 1.15 a.m. as she looked at her clock. According to her the appellant did not return home until 2.15 - 2.25 a.m. She also stated that she recognised her assailant as being the same person as she had seen a little earlier getting out of the white car.
The Advocate depute also submitted, by reference to the report by the trial judge, that the identification of the appellant by the complainer had been positive, detailed and certain. In court she stated that she was absolutely certain of her identification. Shortly after her arrival at her boyfriend's flat she provided the police with a detailed description of her assailant. According to the report by the trial judge it matched the appellant in considerable detail. It included his build, his clothing, his very distinctive mole near the eye, his earring in his left ear, and the fact that he was carrying a bag. The Advocate depute also pointed out that it was of significance that the appellant lived on the eighth floor in Park Court, since the complainer gave evidence that she saw her assailant departing in that direction after the attack. When she made her way to Park Court she noted that a lift had stopped at the eighth floor.
In this connection it is also pertinent to observe that it was open to the jury to take the view that the reliability of the complainer's identification of the appellant was assisted by the evidence as to what he said at the interview. The trial judge in his report merely states that he gave the police further pieces of information which indicated unprompted knowledge on his part of what had taken place. However, from the terms of his statement, which was fully laid before the jury, it can be seen that in a number of ways his statements were capable of providing a clear link with her evidence of identification. He said that he had sexual acts with a girl without her consent after he had got out of the car. He saw her when he was walking up the "lane". She was dressed all in black and walking towards Park Court. He grabbed her and pushed her on to the grass verge. It was an area which was overgrown. He was very drunk. He tried to have sex with her but nothing happened. Then he was feeling her. After a short time she got up and started screaming. He grabbed her by the arm and took her along the path. Then he achieved intercourse with her. After that they lay on the ground for about five minutes. Then he got up and ran to his flat in Park Court. She thought she "dropped her purse or something". He picked it up and gave it to her. She mentioned her first name to him. It may be noted that this was the same name as that of the complainer. She had been wearing a black dress. She said in evidence that during the struggle she had lost her handbag. It was later found near the scene.
Having regard to all these features of the evidence we are satisfied that it was not incumbent on the trial judge to give a specific warning to the jury to take special care in regard to evidence of identification which had been given by the complainer. In our view there was no misdirection of the jury in this respect.
The second and remaining ground of appeal arises out of the fact that a forensic examination of the petticoat worn by the complainer showed that on its lower front there were three seminal stains. According to evidence of a DNA analysis of which evidence was given in the defence case, these stains could not have come from the appellant or the complainer's boyfriend. According to the evidence of the complainer, her assailant said at one stage that he was going to ejaculate. She felt something warm on her hand, and thought that he had done so. However, she later found no sign of semen on her. Mr. Welsh said that in addressing the jury he had founded on the fact that semen which could not have been the appellant's had been found on the complainer's petticoat. In the circumstances the trial judge should have drawn the attention of the jury to this point as it was a matter of significance for the defence.
The Advocate depute pointed out that the complainer had worn a black dress over the petticoat along with a jacket and a body suit. No evidence of semen was found on any of the other items. As regards the semen which was found on the petticoat, there was evidence from a forensic scientist that it was not possible to say how long it had been there. The complainer said that she had bought the petticoat at a car boot sale of second-hand articles. She had not washed it since its purchase.
The evidence of the seminal staining on the petticoat was not necessarily inconsistent with the allegation that the appellant was the assailant. The significance of that evidence plainly depended on the view which the jury took of the evidence given by the complainer about the purchase of the petticoat and the probability that semen from the assailant would have been left on the petticoat. In our view, while it might have been preferable for the jury to have been reminded of that evidence, it was not incumbent on the trial judge to do so if he was to provide them with adequate directions. However, we do not understand the following remarks of the trial judge in his report:
"If I failed to direct the jury about the significance of the seminal staining it was because I did not regard it as essential to the Crown case. The complainer did not allege that any semen on her slip came from the attacker".
On any view the evidence of the seminal staining did not assist the Crown but instead provided the defence with a piece of real evidence which they could argue created a doubt in the appellant's favour. Our view is that this piece of evidence was one which it was wholly within the discretion of the trial judge to mention to the jury in connection with their consideration of the whole evidence, whether or not it was favourable to the appellant.
In these circumstances the appeal is refused.
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
OWEN McLEOD KEARNS
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______