Scottish High Court of Justiciary Decisons

DAVID JOHN CHANT v. HER MAJESTY'S ADVOCATE [2001] ScotHC 19 (26th April, 2001)

[1] The appellant is David John Chant who was convicted at the High Court at Edinburgh in May 1999 of a charge of assault and a charge of rape. He has appealed against conviction.

[2] The ground of appeal relates to evidence contained in an affidavit of a Mrs. Sally Rutherford who had known the appellant for a number of years and who was also introduced to the complainer in the case some time before the date of the offence of which he was convicted. We were informed on the morning of the continued hearing of this appeal that Mrs. Rutherford had died since the first hearing. It followed that the only evidence which would be available at any retrial would be her affidavit.

[3] On 19 December 1998 the complainer went with the appellant to his flat. Although they had lived together for some time, they had separated some weeks before but continued to meet from time to time and remained on friendly terms. It is common ground that, while they were in the flat, they quarrelled, but the sequence of events was the subject of conflicting evidence from the complainer and the appellant.

[4] Put briefly, the appellant said in evidence that he and the complainer had initially argued about the possession of a video recorder but that the subject had then been dropped. According to the appellant he and the complainer then engaged in consensual sexual activity. No violence occurred before or during it, but as part of the sexual activity the appellant had ripped off the complainer's pants. The appellant did not suggest at any time that the sexual activity had taken place upstairs. After the sexual activity, the complainer and the appellant watched television for some time, but eventually the subject of the disputed possession of the video recorder came up again and they quarrelled. According to the appellant, the complainer had gone into the kitchen and fetched a knife. A fight ensued, the details of which are not relevant for present purposes. When a pizza was delivered, the complainer had run out of the house shouting that he was going to kill her. The important point to notice is that, on the appellant's account, the sexual relations were consensual and occurred before the physical violence between the appellant and complainer.

[5] The complainer's account at the trial was very different. She said that a quarrel had arisen because she had refused to begin going out with the appellant again. The appellant became angry and assaulted her. When she tried to dress, he pulled off her tights and threw them away. In the course of the assault he had produced a knife and placed it at her throat. At a certain point the appellant tried to apologise to the complainer but she pushed him away and the appellant had become angry and pushed her to the floor. After that, the appellant had sexual relations with her by force against her will. The jury must have accepted the complainer's account and rejected the appellant's version of events. Again it is noteworthy that the complainer did not suggest that any of the relevant events had taken place upstairs.

[6] The evidence in the late Mrs. Rutherford's affidavit relates to a conversation which she says took place in about June 1999, after the appellant's trial and conviction. According to the affidavit, Mrs. Rutherford happened to meet the complainer and she asked her about her experience in the witness box at the trial. The complainer said it was terrible. Mrs. Rutherford said that she asked the complainer whether the appellant had committed the rape and what had happened. The complainer said "Everything was all right. We went upstairs." The complainer did not say what happened there but Mrs. Rutherford assumed that she meant that they had had sex. The complainer then said, "When we came downstairs, he started his daft carry on again. Honest, Sally, if I hadn't put my hand up to my throat he would have killed me." Mrs. Rutherford said, "That doesn't warrant him getting done for rape" and the complainer replied, "I don't care. He deserved all he got." She then said that she was putting in for criminal injuries compensation.

[7] The short point which Mr. Alonzi made on behalf of the appellant was that this was evidence which was not available to the jury and could not have been. The Advocate Depute did not, of course, dispute that the evidence could not have been available to the jury since the conversation was alleged to have taken place after the trial. While, on Mrs. Rutherford's version, the complainer had not actually mentioned sexual intercourse, Mrs. Rutherford had inferred that she meant that intercourse had taken place and this was a reasonable inference for her to draw. The significance of her evidence, said Mr. Alonzi, was that it could be thought to cast doubt on the complainer's account, that the sexual intercourse had taken place after a quarrel and assault, and to support the appellant's evidence that the sexual intercourse preceded any quarrel and ensuing fight. On the other hand, he acknowledged that Mrs. Rutherford's version did not in fact support the appellant's account, in as much as the appellant had never suggested that the sexual intercourse had taken place upstairs. He could not account for this discrepancy. The Advocate Depute emphasised this discrepancy. Even assuming that the conversation had taken place and that Mrs. Rutherford had been correct to construe the complainer's comments as referring to intercourse, her version was significantly different from the account given by the appellant at the trial. Not only had the appellant not said in evidence that the sexual encounter had taken place upstairs, but that point had never been put in cross-examination of the complainer who had spoken to the intercourse taking place downstairs. Counsel for the appellant had put a number of alleged discrepancies in her evidence to the appellant, but he had never suggested that, on this matter, her evidence was inaccurate. In the result, therefore, while Mrs. Rutherford's evidence was consistent with certain aspects of the appellant's evidence at the trial and contradicted certain elements of the complainer's evidence, it did not truly support the appellant's account of the incident. In these circumstances it was not truly "significant" evidence for the purposes of Section 106(3) of the Criminal Procedure (Scotland) Act 1995.

[8] Having considered the terms of the affidavit, the relevant portions of which are reflected in the quotations which we have already made, we are not satisfied that the evidence of Mrs. Rutherford is of such significance that it would be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice (Cameron v. H. M. Advocate 1987 S.C.C.R. 608 at p. 619 per Lord Justice General Emslie). On the contrary, it appears to us that, for the reasons given by the Advocate Depute, the statement contained in the affidavit does not truly support the appellant's version of events and is, indeed, inconsistent with the only two accounts which were in play at the trial and which the jury were asked to consider. In particular, on the appellant's version of events, the account which the complainer was supposed to have given to Mrs. Rutherford could not have been accurate, since she is supposed to have implied that intercourse took place upstairs. In itself, the place where sexual relations took place might often not be a material consideration. But, in this case, where the sequence of events was in issue, any move from upstairs to downstairs would have been of some importance. Moreover, at the trial, neither the appellant nor the complainer seemed to regard anything which might have occurred upstairs as having any bearing on the charge of assault and rape. Both focused on what had occurred downstairs. As a result, the significance of Mrs. Rutherford's account is substantially diminished.

[9] For these reasons, we consider that the only ground of appeal advanced on behalf of the appellant must be rejected. It follows that his appeal must be dismissed.