Scottish High Court of Justiciary Decisons

ROBERT GARROW v. HER MAJESTY'S ADVOCATE [2000] ScotHC 80 (28th July, 2000)

[1] The appellant is Robert Garrow who was convicted of rape at the High Court at Aberdeen in July 1997. He has appealed against conviction and, although originally other grounds of appeal were lodged, the current grounds allege that a miscarriage of justice occurred due to inadequate representation and preparation of his defence. In presenting the appeal, Miss Scott accepted that the relevant law was to be found in Anderson v. H. M. Advocate 1996 JC 29.

[2] We should mention in passing that the appellant had lodged a devolution minute on the basis that the delay in hearing the appeal had given rise to a breach of Article 6 of the European Convention on Human Rights and Fundamental Freedoms. In view of our decision on the substantive appeal, however, we did not invite argument from the Advocate Depute on that point and it is unnecessary for us to deal with it.

[3] At his trial the appellant was represented by a solicitor advocate instructed by the firm of solicitors in which he was a partner. Both the firm and the solicitor advocate were invited to comment on the grounds of appeal and they did so in letters dated 29 and 30 March 1999 respectively. The letters are in similar terms. Miss Scott accepted, and indeed relied on, the account of events given in those letters.

[4] The alleged rape was said to have occurred on 28 July 1996 and it was reported to the police fairly soon afterwards. When he first consulted his solicitors, the appellant's position was that he had had no sexual contact with the complainer. By 21 February 1997 the agents had a precognition from the complainer as well as a precognition and report from Dr. Griffiths, the Crown medical expert who had examined her after the incident. The examination had revealed a small superficial tear in the outer portion of the complainer's private parts which was, in Dr. Griffiths' opinion, consistent with some degree of penetration by a penis. The agents supplied copies of these documents to Professor Busuttil and asked for his views. In his report dated 1 March Professor Busuttil said that "the positioning of a tear towards the posterior end of the genitals is typical of a site where an erect penis would cause damage in an attempt at penetration of the vagina." That view was similar to Dr. Griffiths' view and did not advance the appellant's case that there had been no sexual contact on the occasion in question. If that had remained the appellant's position, there would plainly have been no point in leading Professor Busuttil as a defence witness since his evidence could have served only to reinforce the evidence for the Crown.

[5] On 8 May the appellant went to the agents' office and saw a representative of the firm who discussed the medical evidence with him. The appellant said that he had heard that the complainer had gone out with another man two days after the alleged incident and suggested that this could have been the explanation for the genital injury noted by Dr. Griffiths. He still maintained that he had not had any sexual contact with the complainer. On 20 June the appellant saw the agents and the solicitor advocate who was to conduct the trial. On this occasion he accepted that he had put part of one finger inside the complainer's private parts. The appellant attended another consultation with the solicitor advocate on 17 July when he modified his position and accepted that there had been some penetration of the complainer's private parts with two fingers.

[6] This narrative shows that on 20 June there was a crucial change in the appellant's account of the incident since, for the first time, he accepted that there had been sexual contact with the complainer, involving a degree of penetration with one finger. On 17 July this became a degree of penetration involving two fingers. Since Professor Busuttil had been instructed and had reported before the appellant changed his account of events, this scenario had not, of course, been put to him for his comment. As the solicitor advocate says in his letter of 30 March 1999, "Given his previous instructions, it was clear that Professor Busuttil had never been explicitly asked to address the question of digital penetration." Despite the change in the appellant's position, the solicitor advocate did not ask the agents to obtain an additional report from Professor Busuttil as to the possibility that the superficial injury noted by Dr. Griffiths was consistent with digital penetration.

[7] At the trial the essential Crown evidence came from the complainer, Brenda Garrow and Dr. Griffiths. The complainer spoke to an incident in which the appellant had penetrated her private parts with his penis against her will. She also said that he had penetrated her anus. She was cross-examined to the effect that there had been consensual sexual contact in which she had touched the appellant's private parts and he had touched hers in return. She rejected that account. Brenda Garrow gave evidence that she had gone into the bedroom and had seen the appellant and complainer in bed, with the complainer crying and saying that she could not get him off her. The appellant did not have his jeans on. She was cross-examined to the effect that the complainer had told her that she had invited the appellant into her bed. In cross-examination Miss Garrow also said that her impression was that there might have been a bit of fondling and that matters had gone further than the complainer had expected. In re-examination Miss Garrow said that, shortly after the incident, the appellant had said something to the effect that things had not gone as far as Miss Garrow thought they had. Dr. Griffiths gave evidence, in line with her report, that the injury suggested that there had been a degree of penetration of the complainer's private parts by an erect penis. She also indicated that there were no signs to show that there had been any anal penetration. She was cross-examined as to whether the slight injury to the complainer's private parts was consistent with penetration over a fairly long period and also as to the time when that injury might have occurred. She was not, however, cross-examined as to the possibility that the injury might have been consistent with a degree of digital penetration.

[8] In evidence the appellant said that the complainer had made a pass at him to which he had responded to the extent of inserting two fingers "ever so slightly" into her private parts but that he had not gone any further since it did not seem right. In cross-examination he put forward an elaborate theory, involving the alleged theft of a mobile telephone, as a possible explanation of why, on his version, the complainer would have lied about what had happened.

[9] The appellant's evidence brought the first day's proceedings to a close. After court that day the solicitor advocate consulted the appellant in the presence of another member of the firm. In the words of the solicitor advocate's letter of 30 March 1999, "the question of the calling or otherwise of Professor Busuttil as a witness was addressed at that consultation and Mr Garrow gave instructions not to call him." The exact nature of the discussion is not stated explicitly but the letter goes on to point out that the complainer's account was corroborated by Brenda Garrow's evidence and then concludes:

[10] It is, of course, correct to say that there was a sharp divergence between the account given by the complainer and the account given by the appellant in evidence. The evidence of Brenda Garrow went some way towards supporting the complainer's account, but the crucial evidence supporting the complainer's evidence that there had been penetration by the appellant's penis was the evidence of Dr. Griffiths. This was the only medical evidence in the case. In substance, therefore, what the solicitor advocate was discussing with the appellant at the end of the first day's proceedings must have been whether calling Professor Busuttil to give evidence would do anything to weaken the Crown medical evidence by lending support to the appellant's evidence that there had been nothing more than digital penetration and what the disadvantages of calling him might be. Standing the terms of the only report which the agents had obtained from Professor Busuttil, it is hardly surprising that the solicitor advocate should have advised that Professor Busuttil should not be called since, according to that report, his evidence would have been likely to reinforce the evidence of Dr. Griffith without offering any countervailing element of support for the appellant's position.

[11] But, as we have pointed out, the defence agents and solicitor advocate had never asked Professor Busuttil whether the superficial injury to the complainer's private parts was consistent with penetration by the appellant's fingers. That being so, the decision not to call Professor Busuttil was flawed because it was taken without a critical piece of information. Of course, in itself, that would not mean that there had been a miscarriage of justice if in any event Professor Busuttil would have said that the injury could not be consistent with digital penetration. To ascertain his view on the point, the agents acting for the appellant in the appeal obtained a report from Professor Busuttil dated 25 November 1997. In it Professor Busuttil indicated that

He went on to say that

He added that

[12] Professor Busuttil's position was therefore that, even though it was statistically more likely that the particular injury would have been caused by an erect penis, it could also have been caused by the insertion of one or two fingers. We have no reason to doubt that Professor Busuttil would have said much the same if the point had been put to him after 20 June 1997. Indeed he would presumably have said the same if he had been asked even as late as the evening of 21 July or before being called to give evidence the following morning. It follows that, if the agents had taken the obvious step of asking for a supplementary report from Professor Busuttil, the solicitor advocate would have had this additional information available to him when deciding whether Professor Busuttil should be called to give evidence for the defence. That information would have been of considerable significance since Professor Busuttil's potential evidence would have been to the effect that the complainer could indeed have received her injury from the kind of act which the appellant said that he had committed. If that information had been obtained promptly, the defence agents might well have precognosced Dr. Griffiths on the point. At the very least, the solicitor advocate would have had ammunition to cross-examine her on it. Even if she had not conceded that the complainer's injury could have been caused in this way, Professor Busuttil's evidence would have given the jury another medical view to consider. Of course, he would also have been likely to say that it was, statistically at least, more likely that the injury had been caused by an erect penis than by fingers. But the important point is that there would have been expert medical evidence from an authoritative source which showed that the appellant's account was at least consistent with the complainer's injury.

[13] In these circumstances we are of the view that the appellant's instruction, after consultation with the solicitor advocate and agents, that Professor Busuttil should not be called to give evidence was vitiated because those involved lacked essential information about his views on the appellant's case. The lack of that information also meant that the solicitor advocate did not cross-examine the Crown expert on the appellant's version of events. The result was that at the end of the case the complainer's account appeared to be supported by the Crown medical expert while the appellant's account appeared to be inconsistent with that medical evidence and also to be unsupported by any medical evidence whatever. On the other hand, if the case had been properly prepared and presented, the solicitor advocate could have cross-examined the Crown medical expert as to the effect of penetration by two fingers and could have led evidence from Professor Busuttil to the effect that the appellant's account was at least consistent with the complainer's injury. In these ways the body of evidence before the jury would have been materially different from the defence point of view. Moreover, as Miss Scott pointed out, the jury obviously attached weight to the medical evidence since in their verdict they deleted the averments about anal penetration to which the complainer spoke in evidence but for which, according to Dr. Griffiths, there was no corresponding injury.

[14] Taking all these elements together we are satisfied that in this case the system broke down to such an extent that the appellant's defence was not properly presented to the jury. If the appropriate steps had been taken to ascertain Professor Busuttil's expert opinion about the appellant's revised account of what happened, the defence case would have been significantly reinforced by evidence to which the jury would have been likely to attach weight. The character of the missing evidence distinguishes the present case from Allan v. H. M. Advocate 1999 S.C.C.R. 923. We cannot say, of course, that the jury would necessarily have reached a different verdict, but the failure to ascertain Professor Busuttil's opinion on the relevant point was fundamental and affected the conduct of the appellant's defence to such an extent that he did not have the fair trial to which he was entitled. In this respect there was a miscarriage of justice. In view of the passage of time, the Advocate Depute did not ask for authority for the Crown to bring a new prosecution. We shall, accordingly, simply allow the appeal and quash the conviction.