APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: C412/96
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
APPEAL AGAINST CONVICTION
SPENCER JAMES MELLORS
HER MAJESTY'S ADVOCATE
Appellant: Burns, Q.C.; Anderson Strathern
Respondent: A.P. Campbell, Q.C., A.D.; Crown Agent
22 July 1999
The appellant is Spencer James Mellors who was convicted at the High Court at Glasgow on 2 July 1996 of a charge of rape. He appealed against his conviction on various grounds, but was granted leave to appeal on one ground only, relating to the direction which the Trial Judge gave on the special defence of alibi. The appeal proceedings have, however, run for a period of almost three years and during that time they have become rather complex. It is necessary to explain a little of the background.
On 13 January 1998 the court allowed the appellant to lodge a ground of appeal relating to what was said to be additional evidence from Joseph Williamson, which was not heard at the trial. The court proceeded to hear argument on both the original (alibi) ground and the additional ground. During the hearing certain information came to light as to what appeared to have been a failure on the part of the Crown at the trial to inform the defence that Williamson, who had not been cited and was not present at the court, had been found by the police. The court continued the hearing until 13 February when the appellant was allowed to lodge a further ground of appeal, based on what was said to be a miscarriage of justice caused by the Crown's failure to inform the defence that Williamson had been found. On that occasion the court ordered that Lord Philip should hear and report on the evidence of Williamson. Due to the difficulties in fixing a diet suitable to the parties, the evidence was not heard until 16 October 1998 and, shortly thereafter, Lord Philip reported on the hearing, a transcript of which was lodged with the court. When the court came to consider his report in June 1999, the composition of the court was different from its composition in 1998 and Mr. Burns, Q.C., appeared in place of Mr. McSherry, the solicitor advocate who had conducted the earlier stages in the appeal. For these reasons we in effect reheard the appeal on the alibi ground, the fresh evidence ground and the ground based on the failure of the Crown to inform the defence about Williamson.
The circumstances of the offence can be set out fairly shortly. The complainer in the rape charge is a prostitute who at the time in question worked in the Anderston area in Glasgow. According to her evidence, in the early morning of Sunday 29 October 1995 - we return to the matter of the time below - a man approached her and she agreed to go to his flat for a fee of £50. When they got to his house in Drumchapel, she asked for the money but the man said that she was not going to get any. He proceeded to rape her and to detain her in the house for several hours during which he raped her on a number of occasions and heaped other sexual indignities upon her. Eventually he agreed to release her but threatened her. He telephoned for a taxi which took the complainer back to the centre of Glasgow. At the trial, the defence in effect accepted that the complainer had been taken to the house which the appellant occupied at 67 Crawford Drive, Old Drumchapel. From the telephone records for that house and from the records of the taxi company it was clear that she left the house at about 1.36 p.m. on the Sunday afternoon.
At the trial the complainer identified the appellant as her assailant and said that he had a scar, which she described. The Trial Judge says that the appellant does have such a scar. At an identification parade, however, the complainer did not pick out the appellant and there was evidence that she had given a description of her assailant which did not match the appellant's description in some respects. But there was powerful support for her identification of the appellant. There was blood staining in 67 Crawford Drive which was consistent with its being blood from the complainer, with a 5,000 - 1 probability. In addition a piece of paper with the complainer's name and address was found in the house. Most importantly, seminal stains on the bedding and semen from the vaginal swabs taken from the complainer showed that the donor was 37,900 times more likely to be the appellant than an unrelated person and 7,400 times more likely to be from the appellant than from any cousin of his. We mention this last figure because the appellant had a defence of alibi coupled with an incrimination to the effect that any rape must have been carried out by the appellant's cousin David Grant Mellors. The Crown called a cousin David Mellors in replication: he said that he had not seen the appellant for about twenty-five years and knew nothing of the matter. The position of the defence was that the David Mellors called by the Crown was not the cousin in question, but the defence led no other cousin as a witness. In short, the position of the defence at the trial was that, although any rape must have occurred in the house at 67 Crawford Drive, it was not the appellant but a cousin who committed it.
Even though the evidence from the telephone records and from the taxi firm showed that the complainer had left the house at about 1.36 p.m., she said in evidence that the taxi had been called at about 2.30 - 3 p.m. It is plain therefore that the complainer's evidence about the time when she left at the end of the incident was not accurate - which is hardly surprising, given the ordeal which she had undergone. More important, however, was her evidence about the time when the incident began. In cross-examination she said that she met the assailant at "roughly four o'clockish in the morning, roughly". She said that she had asked a passer-by who had said it was about four o'clock, but she did not know exactly what the time was. She said that there had been a clock in the bedroom of the house in Drumchapel and that, when she first looked at it, the clock showed about 4.45. She agreed with a suggestion that roughly 45 minutes would have elapsed between the time when she met the man and the time when she saw the clock. In re-examination the complainer agreed that she had no idea whether the time on the clock was correct or whether the time on the clock changed while she was there. She said that she had no idea, within even half-an-hour, of the time when she entered the appellant's house, nor even the slightest idea, to within an hour, of the precise time when she left the house.
The relevant parts of the special defence lodged on behalf of the appellant were:
"That during the times the alleged offences are believed to have been committed the Panel was at the Victorias Night Club, Sauchiehall Street, Glasgow,
thereafter walking between the entrance of the aforementioned premises to a lane to the rear where he entered a private car and travelled by way of Renfield Street, Union Street, Jamaica Street, Broomielaw and Oswald Street to Midland Street,
thereafter, in the aforementioned private car he travelled on public roads along Jamaica Street, Clyde Place, West Street, Kingston Street, Tradeston Street, Cook Street, M8, Clydeside Expressway, Finnieston Street, Ferry Road, Ferry Street, Victoria Park Drive South, Westland Drive, Dumbarton Road, Yokermill Road, Garscadden Road, Manor Road and Crawford Drive,
thereafter he entered the house situated at 67 Crawford Drive and, after a time, travelled by private hire car to the house of Marie Coyle at 16 Howatt Street, Glasgow. Thereafter he travelled by motor vehicle to the Glaswegian Public House, 69 Bridge Street, Glasgow and that at the aforementioned places and during the aforementioned journeys the Panel was in the company or under the observation of" a number of persons whose names were listed.
The speech of the Advocate Depute makes clear that the Crown accepted that the evidence led in support of the alibi indicated that the appellant had indeed been away from the house which he occupied at 67 Crawford Drive for some of the early hours of the morning of 29 October. In particular it showed that the appellant had been involved in an incident with his car in the city centre which resulted in a high-speed chase by the police through the streets of Glasgow after which the appellant went to the house at 67 Crawford Drive. This chase is referred to in the part of the alibi relating to the appellant travelling on public roads "along Jamaica Street, Clyde Place ... Manor Road and Crawford Drive." During the chase a witness, Anne Marie Maguire, was in the car with other women. When they reached the house, they all went in and, some time later, a taxi was summoned and the women left, Miss Maguire going to the house of June Casey. The appellant telephoned June Casey's house, apparently to check up that Miss Maguire had reached there safely. The telephone records showed that the first call to that number was made at 5.10 a.m. and that there was a further call to the same number at 5.28. At 5.33 the records showed that a call was made from 67 Crawford Drive to the taxi firm which had taken the women away earlier on.
The defence position was that, when summoned at 5.33 a.m., the taxi took the appellant to the house of a girlfriend, Marie Coyle, as set out in the Special Defence. There he was said to have remained until a friend, James Henderson, picked him up at about 11.50 a.m. and went with him to the Glaswegian public house. Henderson and Malcolm, the manager of the public house, gave evidence in support of these aspects of the alibi. The position of the Crown was that, when summoned at 5.33 a.m., the taxi took the appellant into the Anderston area of Glasgow where he picked up the complainer and took her back to Drumchapel, that they went to the house at 67 Crawford Drive and that he raped her. He remained with her in the house with him until the taxi was summoned at 1.36 p.m. and she went back into Glasgow.
As can be seen, at the end of the trial, when the Advocate Depute addressed the jury, he accepted the evidence that at some time between 4 and 5 a.m. the appellant had been in his car being chased by the police, that he had gone home and that he had remained there until he left by the taxi which he called at 5.33 a.m. The Advocate Depute invited the jury to proceed on the basis that the incident involving the complainer had begun some time after this, when the appellant and the complainer eventually arrived back at the house in Drumchapel. It will be recalled that, on the other hand, the complainer said that it was roughly 4 a.m. when she was approached by the appellant in Anderston and that the alarm clock in the bedroom showed about 4.45 a.m. If her evidence on these points were to be accepted by the jury as fixing the time when the incident began, then plainly their conclusion would have to be that it could not have been the appellant who picked her up and raped her since at the relevant time he was in the car chase and then back at the house with the other women. Equally plainly, if the jury accepted the evidence that the appellant was in the Glaswegian public house at lunch time on the Sunday, they would infer that he could not have been in the house with the complainer up until 1.36 p.m.
Mr. Burns accepted that it had been open to the Advocate Depute to accept aspects of the alibi evidence and to proceed on the basis that it showed that, contrary to what the complainer said in evidence, she could not have been approached by the appellant until some time near 6 a.m. so that the entire incident had run from then until 1.36 p.m. In that situation it was important for the jury to consider the matter of timing and in particular whether they accepted that the complainer must have been wrong when she said that the appellant had approached her at about 4 a.m. The Trial Judge therefore gave the jury directions on the point:
"Then there is the evidence of alibi. There seems to be no doubt the accused was driving a car somewhat dangerously, you may think, up to about 4.30 a.m. at least, and then there is some support from Henderson and identification from Malcolm about the accused being in the Glaswegian pub on the Sunday round about quarter to one in the afternoon which was of course before the time that the taxi came to pick up [the complainer] at 67 Crawford Drive. So the defence say that the alibi is established.
As far as the evidence of timings is concerned, of course, [the complainer] quite plainly, you may think, is hopelessly wrong on some of the times. She estimated that she left the house round about 3 o'clock on the Sunday afternoon, but of course, as far as we know from the taxi driver's evidence and the phone call evidence that it was about 1.30 that she left; so she is plainly wrong in her timings on that, and you may wonder whether she is right or wrong as to when the event started when she was first picked up in Anderston Cross and you may wonder how far that matters in view of the general evidence that she gave, but that is all a matter for you to decide."
Mr. Burns submitted that these directions were defective. He said that, since the Crown had in effect accepted the elements of the alibi covering the earlier part of the period, it had been incumbent on the Trial Judge to go into the later aspects in more detail and in particular to narrate the evidence on those aspects. We reject that criticism.
The Judge had already explained to the jury that he did not propose to go through all the evidence on which the Crown and defence relied. He was simply going to remind the jury of what the Crown case "very basically" was and later he turned to summarise the defence case "very, very briefly". These particular directions have to be judged within that context. The Judge specifically drew attention to the evidence of Henderson, the appellant's friend, and of Malcolm, the manager of the Glaswegian public house, as providing "some support" for the appellant's evidence that he was in the public house before the taxi came to pick up the complainer. These directions were in our view entirely proper and correctly drew attention to precisely those elements in the evidence relating to the later stages of the events which tended to confirm the appellant's position and were inconsistent with the account given by the complainer. The Trial Judge then, equally properly, pointed out that the complainer's evidence on some timings was hopelessly wrong - leaving it, again entirely properly, for the jury to decide how far those inaccuracies mattered in the overall context of her evidence.
For these reasons we reject the ground of appeal relating to the special defence of alibi.
We turn now to the matter of Joseph Williamson's evidence.
Williamson was included in the list of witnesses for the Crown appended to the indictment where his address was given as "c/o Drumchapel Police Office, Glasgow". Williamson was in the habit of sleeping rough and, presumably for that reason, by the time of the trial the police had been unable to cite him, though instructed by the Crown to do so. It appears that a Constable Davis had tried to find him in the early hours of Saturday 15 June and again in the early hours of the following Saturday, but on both occasions without success. The trial began on Monday 24 June. On that morning the Advocate Depute, Mr. Drummond, Q.C., was aware that Williamson had not been cited. It is agreed that, in the presence of the Crown junior, Fiona Davies, he passed this information on to Mr. McSherry and Mr. Paul Burns who were representing the appellant, but there is some difference in recollection as to what he said. The Advocate Depute thought that his normal form of words would have been to say something like "We have not been able to get a hold of Williamson. We do not require him. If you do, would you let me know?". The Advocate Depute's recollection is that Mr. McSherry agreed to let him know and that, before the trial began, Mr. McSherry said that the defence would not require Williamson. Miss Davies said that the Crown became aware that Williamson had not been cited and either she or the Advocate Depute told Mr. McSherry who said that he would like Williamson to be a witness but would not demur to starting the trial without him. It was agreed that efforts would continue to be made to find Williamson and best efforts would be used to make him available. The position of defence counsel at the appeal was that, although Mr. McSherry and Mr. Paul Burns had been told that Williamson was not available, they were not told that he had not been cited.
We are satisfied that Miss Davies' recollection is to be preferred to the recollection of the Advocate Depute since it is confirmed by what happened subsequently. A report by Constable Davis dated 1 July records that "at 1445 hours on Tuesday 25 June 1996, Mr. Pidgeon of the Procurator Fiscal's Office, 10 Ballater Street, Glasgow, contacted Drumchapel Police Office and instructed Constable Daniel Goodwin B274 to make further attempts to trace the said witness at the Wayside Club, Midland Street, Glasgow and at his parents' address at 19 Rosebery Street, Glasgow." The report goes on to detail steps which the police took later that day to try to trace Williamson. These steps are explicable only on the basis that, as Miss Davies recalled, in agreeing to proceed with the trial without Williamson being present, the defence none the less said that they wished steps to be taken to find him and the Crown agreed to instruct the police to resume their efforts to trace him.
The trial continued meanwhile and by the morning of 1 July the defence were leading their witnesses in support of the appellant's position. It appears that, as a result of something said in evidence by the complainer, the Crown had alerted the police to the possibility that the complainer might call at the local authority housing office and that, if she did so, she might well be accompanied by Williamson, who acted as a minder for her. The police therefore became aware at 10.10 a.m. on 1 July that the complainer and Williamson were at the housing office. Officers went to the office and by 10.32 a.m. they had spoken to the complainer and Williamson. Williamson was reluctant to attend the court. The divisional controller at Baird Street Police Office, Constable Janice Duffy, contacted the High Court and a message was passed to the Crown junior, Miss Davies, who left the court room and went to speak to the controller. The Crown junior was aware that Williamson had not been cited, that there was no warrant for his attendance and that he could not, therefore, be forced to come to court. According to the police computer record, Miss Davies told Constable Duffy that Williamson and the complainer should be asked to attend voluntarily at the court to discuss the situation but both declined and at 10.47 they were allowed to go on their way. Miss Davies returned to the court room and wrote a note for the Advocate Depute - which we have seen - saying that they were refusing to come and recording that she had "told PC Duffy we won't take warrant for Williamson". Miss Davies' recollection was that she handed the note to the Advocate Depute and it was her impression that he acknowledged receipt. The Advocate Depute, on the other hand, says that he has no recollection of receiving the note from Miss Davies and that he was unaware that Williamson had been found.
Later that same morning at the end of the evidence of the last of the defence witnesses, James Henderson, Mr. McSherry called Williamson but, of course, he was not present in court. Even though Williamson had been seen earlier that morning, neither the Advocate Depute nor Miss Davies said anything to the defence when Mr. McSherry called Williamson. Miss Davies thought that the Advocate Depute was aware of the situation and left the matter to him, while he actually did not know what had happened. The result was that Mr. McSherry closed the defence case without the evidence of Williamson and, in due course, speeches were made, the Judge charged the jury the following morning and the jury returned their majority verdict convicting the appellant.
It is important to note that, although the account of the circumstances relating to Williamson proceeds largely on the narrative given to this court by the Advocate Depute (who was not Mr. Drummond) and on the supporting police documents, Mr. Burns, on behalf of the appellant, did not challenge that account in any of its essentials. In particular, he did not challenge the Advocate Depute's conclusion that what happened at the trial happened because of a failure of communication between the Crown junior and the trial Advocate Depute about Williamson having been contacted on the morning of 1 July. It is, accordingly, on the narrative which we have outlined that we must consider the remaining grounds of appeal.
We deal first with the fresh evidence appeal. Section 106(1)(a) of the Criminal Procedure (Scotland) Act 1995 provides that any person convicted on indictment may, with leave, appeal to the High Court against the conviction. Subsections (3) and (3A), so far as relevant, provide:
"(3) By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on -
(a) subject to subsections (3A) to (3D) below, the existence and
significance of evidence which was not heard at the original proceedings...
(3A) Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard."
Mr. Burns made submissions along the following lines. Although Williamson was on the list of witnesses, he had not attended court. Those representing the appellant at the trial had the right to expect that witnesses on the Crown list would be available (Dickson v. H.M.A., 23 October 1980, Crown Office Circular A22/80). Admittedly, Mr. McSherry and Mr. Burns had been informed before the trial that Williamson was not present, but they had not been informed that he had not been cited. In those circumstances they had taken the decision not to seek an adjournment on the basis that the Crown would use their best endeavours to locate Williamson and to bring him to court. The Crown had failed to do so. There was thus "a reasonable explanation", within the meaning of section 106(3A), of why the evidence of Williamson was not heard.
In our view the case of Dickson does not advance the argument for the appellant. We were supplied with some background papers which helped to fill out the account of the case given in the Crown Office circular. At a trial in Edinburgh Sheriff Court in August 1980 the agent for the appellant moved for an adjournment on the ground that two of the witnesses on the Crown list had been excused by the procurator fiscal and were not in attendance. He said that it was important for the defence that their evidence should be heard, since they had both been present at the locus when the crime was committed but had failed to identify the appellant at an identification parade. The motion for an adjournment was opposed by the Crown and refused by the sheriff on the ground that the fact that the Crown had failed to produce any eye witness to identify the appellant, although eye witnesses had been present, could properly be made a matter of comment by the defence. In their speeches both the procurator fiscal and the defence agent very properly referred to this point and in his charge to the jury the sheriff drew their attention to the fact that there had been two eye witnesses, but they had not been called to give evidence and neither of them had picked out the applicant at the identification parade. Without delivering any opinion, this court, comprising Lord Justice Clerk Wheatley, Lord Kissen and Lord Jauncey, allowed the appeal.
Mr. Burns submitted that Dickson should properly be regarded as a fortiori this case since in Dickson the sheriff had sought to remedy the situation by giving the jury a specific direction. Here there had been no such direction by the trial judge. So far as it goes, that submission is correct. But the significant starting-point for considering Dickson is, of course, the fact that the ground of appeal was that the sheriff had erred in refusing the defence motion for an adjournment because of the absence of the witnesses. In other words the defence in Dickson maintained at the outset that the appellant should not be obliged to go to trial in the absence of the witnesses and that the trial diet should be adjourned until they were available. Here, by contrast, of course, those then representing the appellant, were aware that Williamson was not available and might well not be available even though the Crown were to endeavour to find him. They none the less decided not to seek an adjournment but, rather, to proceed with the trial. Such decisions are, of course, frequently taken by defence counsel and depend on a multiplicity of factors. None of the relevant factors is known to the court in this case. But in a case, such as the present, where those conducting the defence decide not to seek an adjournment, because a potential witness on the Crown list is not present, and prefer to proceed with the trial, the decision in Dickson is distinguishable and has no bearing on the matter.
Mr. Burns' wider submission was simply that the evidence of Williamson properly fell to be regarded as coming within the scope of Section 106(3) and (3A) on the basis that it had not been heard at the original trial because he had not been cited and did not attend. That submission appears to us to have potentially far-reaching consequences in a case like the present where, it must be presumed, those conducting the appellant's defence decided that the better course in his interests was not to seek an adjournment for steps to be taken to try to find the witness, but rather to proceed to trial in the hope that he might be traced before the end of the defence case. In this case, however, there is the further significant factor that the Crown did not tell the defence representatives on the morning of 1 July that Williamson had been traced; they were therefore disabled from making a motion at that stage that the proceedings should be adjourned to allow Williamson to be cited and brought to court. That matter, which is the basis of the third ground of appeal before the court, focuses the true issue between the parties in the present case. There is accordingly no need for us to reach any decision on Mr. Burns' wider submission and we do not do so.
The account which we have given of the events at the time of the trial can be broken down into five points: first, that the defence agreed to proceed with the trial knowing that Williamson was not present to be called as a witness and might not be present before the end of the trial; secondly, the defence did so only on the basis of an undertaking by the Crown that efforts would continue to be made to try to locate Williamson and to make him available; thirdly, on 1 July the police found Williamson and informed the Crown; fourthly, due to a breakdown in communication within the Crown team the Crown failed to inform the defence that he had been located; fifthly, the defence were thereby denied the opportunity, in these new circumstances, of asking for an adjournment of the trial with a view to having Williamson cited and brought to give evidence. We are satisfied that the failure by the Crown to inform the defence that Williamson had been located amounted to "a serious flaw in the conduct of the case" (Lowson v. H.M. Advocate 1943 J.C. 141, at p. 146 per Lord Justice General Normand). The effect of that flaw in the proceedings on the substance of the case can only be judged, however, by ascertaining the nature and extent of any evidence which Williamson might have given, if called as a witness, and which might therefore have been available to the jury, along with all the other evidence in the case, when considering their verdict. It was for this reason that the court ordered his evidence to be heard by Lord Philip in terms of Section 104(1)(b) of the 1995 Act.
The appellant's agents attached to the ground of appeal lodged on 13 January 1998 two precognitions of Williamson, one of which had been taken before the trial. On the basis of that precognition, the original argument on behalf of the appellant was that, if called as a witness, Williamson would have said that some time during the night in question he saw the complainer going away with a man who was talking to her as they walked in the direction of a taxi rank. In the precognition Williamson said that he had not actually seen them getting into a taxi, but the complainer had not come back until the next day - presumably, later on the Sunday. The crucial point was that in the precognition Williamson is recorded as saying:
"I'm convinced they've got the wrong guy in for this. I know Spencer Mellors. I saw him at court one of the times when I was there. He's got a very distinctive appearance and I remember a gold bracelet that he had. He's nothing like the man that went away with [the complainer] that night. [The complainer] gave a description to me of the man having black hair that was going grey and with a wee scar going just along the cheek bone. Spencer Mellors has got a great big scar going right down and then another one going right across. Spencer Mellors is also very heavily built and very broad and the guy I saw was much more thinly built."
Had that been the substance of Williamson's evidence then, leaving aside any question of credibility or reliability, it would have been material and relevant to the issue before the jury, since the complainer's evidence was that the man who approached her and with whom she got into a taxi was the man who raped her and Williamson would have been saying that the man in question was not the appellant.
At the hearing, however, Williamson's position was completely different. The substance can be summarised in this way. At the relevant time he was "high on drugs, really bad". When he last saw the complainer, she was getting into an ordinary car, not a taxi. He was positive that it was not a taxi. The car was white or silver. She had approached the car and the front seat passenger's window had been opened. The person in the car had spoken through the window. Williamson had not seen the complainer speaking to a man when walking down the street. After going away in the car, the complainer had not returned until the following day. When she had been away for some time, Williamson walked about the area looking for her. This would have been between midnight and one o'clock in the morning. It followed that he had last seen the complainer, getting into the car, before midnight. He was positive that it had not been at about four o'clock in the morning since the police did not allow prostitutes to work beyond four o'clock and the complainer would have stopped working before that time. She might work up until two or half-past two, but never as far on as four o'clock.
Mr. Burns frankly accepted, of course, that Williamson's evidence did not suggest in any way that the man with whom the complainer went away was not the appellant. If Williamson had given that evidence at the trial, it would not therefore have had the same significance as the evidence foreshadowed in the pre-trial precognition. None the less Mr. Burns submitted that the court should bear in mind that Williamson's evidence had been taken on 16 October 1998, three years after the events, whereas, if cited, he would have given evidence at the trial at the beginning of July 1996, less than nine months after the incident. He was a drug user and this clearly affected his recollection, but it might well be that his recollection would have been better in July 1996 than in October 1998. The court should not therefore assume that his evidence at the trial would have been the same as his evidence taken before Lord Philip. Furthermore, though not assisting the appellant's case in the way that had been anticipated, Williamson's evidence was actually material since it cast further doubt on the Crown position that the incident began when the appellant called a taxi at 5.33 a.m. and went to the Anderston area and approached the complainer. According to Williamson, the complainer would not have been working at that time and in any event he had last seen her going away in a car before midnight.
It is important to record what Lord Philip tells us in his report about the impression which Williamson made when giving evidence. According to his Lordship, Williamson appeared to be affected by a drug or drugs and his speech was at times slurred. His demeanour was best described by the colloquial expression "spaced out". His Lordship concludes his report in this way:
"Against that background I find myself unable to categorize Mr. Williamson as a credible or reliable witness. While he claimed that in general terms his memory of the time of the crime was very poor, he was firm in some parts of his evidence ... and vague and even evasive at others. My impression was that he had made up his mind in advance what his evidence was to be on a limited number of points, and was not prepared to be drawn on other matters. I could not be satisfied that his evidence was truthful."
We therefore start from the position that, for the reasons which he gives, Lord Philip found that Williamson was not a credible or reliable witness nor was his evidence truthful. Mr. Burns, who had led the evidence at the hearing, did not suggest that his Lordship had not been entitled to form that view of Williamson. Indeed it appears to us that the reality is that not only was Williamson a wholly unreliable witness when his evidence was taken before Lord Philip, but that he would always have been so. What he said in evidence differed completely from what he had said in precognition to the appellant's agents. Moreover, we have a copy of his statement to the police, taken on 15 November 1995, where he makes no mention of seeing the complainer leaving with a man in a car and merely says that at about 4 a.m. he was standing at the stairs at Anderston Bus Station, that he had lost sight of the complainer and that, after about an hour-and-a-half, he began to get worried when she had not appeared. It is therefore obvious that, even before the trial, Williamson had been giving inconsistent accounts and that those accounts were entirely different from the account which he gave in evidence before Lord Philip. Moreover, there was not a hint in either of his accounts before the trial that the complainer had gone away before midnight, nor of any supposed practice of prostitutes ceasing work by four o'clock nor yet of the complainer usually stopping considerably earlier than that. Almost the only common theme in the precognition and in Williamson's evidence is that he was taking drugs at the relevant time and that this affected his recollection - and even this theme does not appear in the police statement. In short, when the whole picture is examined, there is no reason to suppose that, even if he had been called to give evidence at the time of the trial, Williamson would have given evidence along the lines of the precognition taken by the appellant's agent or indeed that any evidence given by him would have been credible or reliable or capable of being regarded by a jury as credible or reliable. In those circumstances the idea, that Williamson might have given evidence along the lines of his defence precognition if he had been called as a witness in July 1996, is based on nothing but speculation.
We have gone further and, using the test applied by Lord Justice General Normand in Lowson (at p. 150), asked ourselves whether the evidence which Williamson gave before Lord Philip would have led a reasonable jury towards a different verdict. In our view it would not. We accept that, if Williamson had said that the complainer had gone away before midnight, then this would have introduced another strand of evidence as to the time when she left with the man concerned. We accept also that, if accurate, any such evidence would have been inconsistent with the appellant having been the man with whom the complainer went away. But it has to be recalled that, although the defence laid emphasis on the exact time when the incident was supposed to have begun, the strength of the Crown case lay in the evidence that the complainer identified the appellant in court (though not at the identification parade); that he had a scar, as she had described; that the forensic evidence showed that she had been in his house; that there was a piece of paper with her name on it in his house and that the DNA evidence pointed overwhelmingly to the appellant as the person who had had intercourse with the complainer. Whatever might be the exact time at which the incident started, that was a body of evidence which pointed clearly to the appellant as the man concerned. In response to that powerful case based to a large extent on scientific evidence, the appellant could do no more than advance the line that the attack must have been carried out by a male relation who was supposedly living in the house at the time, but whose precise identity he was unable to give and who, of course, was not called as a witness. Given that the majority of the jury accepted the powerful case for the Crown, notwithstanding the obvious confusion of the complainer as to the precise time when the incident began, we see no reason to suppose that the introduction of Williamson's evidence on timing would have been of any significance. Moreover, we note that such evidence by Williamson would have been wholly inconsistent with the defence case being advanced at the trial, which was to the effect that the time on the clock in the bedroom was correct and that it had been about 4.45 a.m. when the complainer and her assailant reached the house. By contrast, an incident in the house beginning at about midnight and lasting until the early afternoon would also have been difficult, to say the least, to reconcile with the appellant's evidence that he was in the house with Anne Marie Maguire and the other women at some time before 5.10 a.m. The whole thrust of the defence case was that the incident would have required to begin after 5.10 a.m.; evidence suggesting that it had begun long before that time would have tended, if anything, to counter, rather than to support, the challenge to the Crown case which the defence actually mounted at the trial. We are accordingly satisfied that evidence by Williamson of the kind that he gave before Lord Philip would not have led a reasonable jury towards a different verdict.
For all these reasons we have reached the conclusion that, notwithstanding the irregularity which occurred in the proceedings, there was no miscarriage of justice. The second and third grounds therefore fall to be rejected. The appeal as a whole must therefore be refused.