APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by LORD MACFADYEN
NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE
HER MAJESTY'S ADVOCATE
Act: Gilfedder, Taylor, Solicitor Advocates; Gilfedder & McInnes
Alt: Beckett Q.C., A.D.; Crown Agent
 The appellant, Steven Burzala, was indicted in the High Court of Justiciary at
"on 19 May 2001 at Lady Walk between Newbattle Road and Easthouses Road, both Dalkeith, Midlothian you did assault [LLD, hereinafter referred to as "the complainer"] ... repeatedly place your hand under her clothing, seize hold of her, repeatedly kiss her face, restrain her, forcibly remove her clothing, rub your private member between her legs, lie on top of her, force her legs apart and did repeatedly rape her all to her injury".
In his defence he pleaded consent. After trial he was on
 The appellant
appealed against conviction and sentence.
His Note of Appeal was originally lodged on
 The consolidated grounds of appeal against conviction are formulated under three headings, namely (1) defective representation, (2) additional evidence and (3) insufficiency of evidence/misdirection. The submissions in support of the grounds relating to insufficiency of evidence and misdirection were made on the appellant's behalf by Mr Taylor. Thereafter, the submissions in support of the grounds relating to defective representation and additional evidence were made by Mr Gilfedder.
Circumstances of the
 Although it will be necessary in due course to examine some of the circumstances of the case in more detail, it is convenient at this stage to set out an outline narrative in order that the submissions made may be seen in context.
 At the
material time the complainer was 19 years of age. She had, between three and four weeks
earlier, given birth to a child. The
father of the child was Paul Burzala, a nephew of the appellant. Although the complainer and Paul Burzala did
not live together, their relationship was a continuing one. On the date mentioned in the libel, the
complainer, with Paul's encouragement, went out for the evening for the first
time since the birth of the child. She
was accompanied by her friend, Nicola Miller. They went to a public house or club in
Dalkeith called the
 Eventually, as a result evidently of the alcohol which she had consumed, the complainer vomited in the public house. That led to her being ejected from the premises. The appellant also left the premises, and accompanied the complainer as she set off to walk to her mother's home in Easthouses. After some time they turned off the road onto a narrow unlit path. After they had gone some distance down the path, walking in single file, the appellant put his hands on the complainer from behind and turned her round to face him. According to the complainer, she froze. The appellant began to take her trousers down, and placed his private member between her legs. The complainer fell to the ground and, despite her telling the appellant to stop, sexual intercourse took place. The complainer then ran to her parents' house. When she arrived there, she was in a state of extreme distress. In answer to questions from her mother, she said that the appellant had raped her.
(a) Submissions for the appellant
 In opening his submissions under this ground of appeal, Mr Taylor drew our attention to the fact that the trial in the present case concluded in February 2002, prior to the decision in Lord Advocate's Reference No. 1 of 2001 2002 SCCR 435 (which was issued on 22 March 2002), in which it was held that the actus reus of rape was constituted by sexual intercourse without the woman's consent. The trial thus proceeded on the view, until then generally accepted, that the actus
 Mr Taylor submitted that, on any view of the evidence, there was very little force involved in what had taken place. The trial judge had made that point to the jury at page 16 of his charge. There was no question of threats of force. The focus of the submission was on the sufficiency of the evidence given by the complainer herself. At page 35 of the transcript of her evidence the complainer said that she felt uncomfortable when the appellant started telling her how sexy she looked. He asked for a kiss and she said no, and kept walking (page 36). Having said that the appellant raped her (page 36), the complainer continued by explaining, "We were just walking and he stopped. ... He stopped me and I stopped." Asked how he stopped her, she said, "Just with his hands. ... (page 37) With his hands, just pulled and turned round. ... I was scared. ... Because of the things he was saying and the way ... the closeness that he was standing. ... (page 38) He was just standing that close. ... I didn't ken what to do. I froze still". Having said in reply to a direct question that she did not want him to kiss her, the complainer continued, "then he started unzipping my trousers. I didn't ken what to do. My dad had always says to us, me and my two older sisters, if anything ever happened, don't panic because it makes him ... can make him worse." When asked about how her trousers came to be down, she repeated that she was frozen (page 39). She then explained that she fell because of the path and her trousers being down. She fell on nettles and, in moving off them, ended up on her back (page 40). She went on (page 41) to give an account of intercourse taking place, and (page 42) of the appellant at an earlier stage masturbating between her legs. At that stage, she said, "He had his hands around me. ... He had one hand round my back. ... I was frozen and I couldn't move". In these passages, Mr Taylor submitted, there was no suggestion of any act of violence or aggression. There was no question of the appellant having forced the complainer to the ground. More was required than the force inherent in achieving penetration. The complainer's evidence was insufficient to entitle the jury to conclude that the requirement of the law, as then understood, that it be proved that the woman's will had been overcome by force, had been satisfied in the present case. Nor was it sufficient to entitle the jury to conclude that the appellant was aware that the complainer did not consent to intercourse, or was reckless as to whether she consented, and thus had the necessary mens rea of rape. The submission under section 97 had therefore been wrongly rejected, and ground of appeal 3(b) should be sustained.
for the Crown
 The Advocate depute submitted that there was at the close of the Crown case sufficient evidence of forcible rape, and that the submission under section 97 had therefore been correctly rejected. The sufficiency of evidence was to be found not in the complainer's evidence alone, but by looking at that evidence in the context of the other circumstances disclosed in the Crown case. That included the evidence of the appellant's police interview. The case was a circumstantial one. It followed, first, that it was necessary to look at the evidence as a whole; each piece of circumstantial evidence need not be incriminating in itself; what mattered was the concurrence of testimony; and, secondly, since circumstantial evidence was by its nature open to more than one interpretation, it was for the trial court, in this case the jury, to decide which interpretation to adopt (Megrahi v H. M. Advocate 2002 JC 99 at paragraph 32).
 Under reference to various passages in the appellant's police interview the Advocate depute compiled a list of circumstances which, he submitted, provided the context in which the complainer's evidence was to be interpreted when consideration was given to the question of whether there was sufficient evidence of forcible rape. (He also submitted that these circumstances were relevant to mens rea, even if there was no force.) These circumstances were:
(1) That the complainer had given birth to her child a mere three and a half weeks previously.
(2) That the father of her child was the appellant's nephew, and his relationship with the complainer was at the material time a continuing one.
(3) That there was no evidence of any pre-existing sexual relationship between the complainer and the appellant.
(4) That the complainer was 19 years of age, while the appellant was 40.
(5) That the intercourse that took place occurred after the complainer had been ejected from the public house for vomiting.
(6) That the intercourse took place out of doors in a muddy uncomfortable location on top of nettles.
(7) That the appellant's explanation for intercourse taking place where it did made reference to his being drunk and his hormones "going"; that explanation showed no consideration for the complainer and what her view of the matter might be.
(8) That nothing was laid on the ground to protect the complainer from the mud and nettles.
(9) That the appellant had a condom with him but did not use it.
(10) That the appellant acknowledged that afterwards the complainer started to cry and walked away.
(11) That one passage in the appellant's police interview, although surrounded by other passages in which he maintained that she consented and did not say "no" until after he finished, was capable of bearing the meaning that she indicated unwillingness while intercourse was taking place. That passage, at page 7 of the transcript of the interview, was in the following terms:
"Q. At any time eh, when you were having sexual intercourse did she say no to you, or anything like that, that indicate, would indicate to you she didn't want to have sexual intercourse?
A. Yeah, she did. She started, well wi' the hands."
It was for the jury to make what they thought fit of these circumstances and draw such inferences as they regarded as capable of being drawn from their totality.
 The Advocate depute then drew our attention to certain passages in the evidence of the complainer over and above those mentioned in Mr Taylor's submissions. He referred to her evidence about her then continuing relationship with Paul Burzala (pages 4 to 7); about the appellant's attempts to kiss her while they were dancing, and her not wanting to be kissed (page 20); about the path not being the way she would normally have walked home, but her having no reason to think the appellant would do anything to her (pages 29 and 30); about her beginning to feel uncomfortable when the appellant started to tell her how sexy she looked (page 35); that she still had stitches following the birth and was sore and bleeding (page 45); and that she had not had sexual intercourse since the birth of her child (page 52).
"The only corroboration of the complainer's account was evidence of her distress in her parents' house shortly after the event. Both her parents gave evidence of this, as did PC Fiona Harrison, who was one of the first police officers to come to the house. They described the complainer in a state of extreme distress. The complainer had come in and collapsed in the hall of the house. She repeatedly screamed at her mother, 'Dinnae touch me'. She lay in an almost foetal position in the corner of the hall. She appeared terrified, she would not let her mother near her and she was shuddering uncontrollably. She said that the appellant had done something horrible to her and had really hurt her. PC Harrison said that she was in the most distressed state that she had ever seen in her four years of police service. She described her as wailing, crying and in shock. She had heard the wailing and crying as soon as she got out of her car. When she saw her, the complainer appeared to be in shock and was almost not wanting to be touched. Her trousers were covered in mud."
 The Advocate depute submitted that the complainer's evidence, when viewed in the context of the other circumstances disclosed in the evidence led as part of the Crown case, was capable of being accepted by the jury as evidence that her will had been overcome by force, albeit not a great amount of force. The case was therefore capable of being regarded by the jury as one of forcible rape, and if it was so regarded, the evidence of the complainer's distress was capable of affording corroboration (a) of the complainer's evidence that intercourse had taken place without her consent, (b) of her evidence that her will had been overcome by force and (c) of the inference that the appellant had been aware of the absence of consent, or had been reckless as to whether the complainer consented or not. In support of these propositions the Advocate depute referred to Yates v H. M. Advocate 1977 SLT (Notes) 42, 1990 JC 378 (Note); Smith v Lees 1997 JC 73; Gordon v H. M. Advocate 2004 SCCR 641; and Spendiff v H. M. Advocate 2005 SCCR 522.
 It is appropriate to note that the submission under section 97 made by senior counsel for the appellant at trial was presented on a very limited basis. He accepted, apparently, that, in taking hold of the complainer and turning her round, the appellant used an element of force (transcript of the submission (document 29), page 10, lines 4 to 10). The submission appears to have been that what happened after the complainer fell to the ground was a different stage (page 10, line 10); that there was no force used to overcome the complainer's will when she was on the ground, and holding her and turning her round when she was still standing could not be said to have overcome her will (page 10, lines 18 to 25); that the force which was acknowledged was too distant from the act of intercourse in terms of causation to satisfy the requirement that the complainer's will was overcome by force. Assuming the concession made by senior counsel at page 10, lines 4 to 10, to be soundly made, there is, in our view no merit in the submission that was advanced, and the trial judge was right to reject it. Neither in the passage of time nor in the other circumstances was there sufficient to justify excluding from the jury's consideration the view that the force involved in taking hold of the complainer and turning her round played a material part in overcoming her resistance to the appellant's advances.
 Mr Taylor's approach involved looking at the matter more broadly, and involved a departure from the concession made by senior counsel at trial. That approach, nevertheless, concentrated on the complainer's own description of what happened. But, as the Advocate depute rightly pointed out, it would have to be seen in the context of the whole Crown evidence. We accept at once that such force as the appellant might be regarded as having used, if the complainer's evidence is accepted, in taking hold of her and turning her round, in standing uncomfortably close to her, and in holding her with a hand behind her back as he masturbated between her legs, can be classed as slight to moderate. But we are unable to affirm that a jury could not legitimately regard it as sufficient force to overcome the appellant's will, if only by causing her to freeze, as she said she did. When regard is had to the whole circumstances disclosed in the evidence, there is in them material that a jury would be entitled to rely on as providing the context in which they had to decide whether the complainer's will was overcome by the slight force that the appellant was said to have used. We refer to the list of circumstances compiled by the Advocate depute and set out in paragraph  above. We would add that, as regards item (11) of the Advocate depute's list, we are conscious that the context of the short passage in the appellant's statement seems on the whole adverse to its being taken as an acknowledgement by the appellant that the complainer offered resistance. This, however, was a matter for the jury to consider, and we note that, following their retiral, they asked, and were allowed, to see the relevant part of the video tape recording for a second time.
 Neither counsel at the trial nor Mr Taylor before us made much of the question of corroboration. The contention rather was that the complainer's evidence was not evidence of forcible rape. We reject that contention for the reasons which we have given. That being so, we accept the Advocate depute's submission that since the case can be regarded as one of forcible rape, the evidence of the complainer's distress can be regarded as corroborative both of the overcoming of the complainer's will by force and of the inference that the appellant knew that the complainer did not consent or was at least reckless as to whether she consented or not (cf Spendiff at paragraph 34, where a similar analysis was upheld). Mr Taylor took no issue with the drawing of that inference.
(d) Conclusion on
 For the reasons we have given we are of opinion that there was in all the circumstances disclosed in the Crown case sufficient evidence to entitle the jury to conclude (a) that the sexual intercourse between the appellant and the complainer took place without her consent, her will having been overcome by force used by the appellant; and (b) that the appellant knew that the complainer did not consent, or was at least reckless as to whether she consented or not. In these circumstances we are satisfied that, whether the case is tested by reference to the law as it was understood before the decision in Lord Advocate's Reference No.1 of 2001, or regarded as a case of forcible rape and tested by the law as understood after the decision in that case, the submission under section 97 was rightly rejected. Ground of appeal 3 therefore falls to be rejected.
of conclusion on sufficiency
 In light of that decision, which we intimated to parties in the course of the Advocate depute's submissions in reply to Mr Taylor, certain matters which were touched on in the submissions which we heard do not arise for decision. Mr Taylor and the Advocate depute addressed us on the sufficiency of the evidence of mens rea on the part of the appellant, on the hypothesis that the case was to be regarded as one of non-forcible rape and judged by the criteria which fell to applied to that category of case following Lord Advocate's Reference No. 1 of 2001. That does not arise in view of our decision that the section 97 submission fell to be upheld was rightly rejected on the basis that there was sufficient evidence of forcible rape. We also need not address certain consequential submissions. One of these, advanced by Mr Taylor, was that if the stage was reached at which it was held that the section 97 submission should have been upheld by the Trial Judge by reference to the law as understood before the decision in Lord Advocate's Reference No. 1 of 2001, but the view was taken that there was nevertheless sufficient evidence of rape including evidence of mens rea if the case were viewed as one of non-forcible rape, this aspect of the appeal should nevertheless be allowed, because the appellant would have been entitled to an acquittal under the law as understood at the date of his trial. Mr Taylor sought support for that submission in Gonshaw v Bamber 2004 SCCR 696. Mr Taylor also submitted that to do otherwise would involve a contravention of his rights under Article 6(3)(a), as read with Article 7, of the European Convention on Human Rights. Neither of these arguments need be considered, since we have held that there was sufficient evidence of forcible rape, and we did not hear argument on them from the Advocate depute. In these circumstances we expressly reserve our opinion on them. We note, too, that as a consequence of our decision on the sufficiency of the evidence of forcible rape, the Advocate depute did not find it necessary to address us, as he indicated he might otherwise have done, on certain aspects of the case of Boncza-Tomaszewski v H. M. Advocate 2000 SCCR 657.
(a) Submissions for the appellant
 On the appellant's behalf, Mr Gilfedder submitted that there had been a miscarriage of justice based on the fact that he did not receive a fair trial because a material part of his defence was not presented by his counsel to the court.
 Mr Gilfedder reminded us that the complainer gave evidence of going to the club, of consuming alcohol there, and of meeting the appellant, whom she knew; and although she conceded some familiarity, her position was that at no time in the club did she kiss the appellant. In that evidence she was supported by her friend, Nicola Miller. The complainer left the club after she had vomited. She was joined outside by the appellant. He offered to escort her home. According to the complainer, on the way she rejected his advances, including his attempts to kiss her, and thereafter he raped her. Although she then went home, showing considerable distress, and claimed that the appellant had raped her, there was no damage to her clothing and she suffered no injuries. In contrast, the appellant's evidence was that the complainer acted in a familiar way towards him in the club, willingly kissed him on the way home, and ultimately had consensual sexual intercourse with him. When detained and interviewed, he had stated that sexual intercourse took place with the complainer's consent. He lodged a special defence of consent.
 Mr Gilfedder emphasised that the thrust of the complaint of defective representation was directed against senior counsel who had represented the appellant at trial, not against the solicitors then acting. The solicitors had obtained a precognition from Brian Russell, a steward at the club. It was generally to the effect that the complainer and the appellant had been holding hands in the club, and had had an occasional kiss. They had walked away from the club holding hands. The appellant's instructions prior to the trial were to the effect that consensual kissing began in the club and continued outside on the way to the path (although it was accepted that he did not give express instructions that the point was to be put to the Crown witnesses). At trial, it was never put to the complainer or to Nicola Miller that the complainer was happy to kiss the appellant in the club (although it was clear enough that, if the point had been put to them, they would have answered in the negative), nor was the appellant asked, when he gave evidence, if consensual kissing had taken place there. As a result, what the jury heard was that the complainer had in the club rejected certain advances by the appellant, in particular, kissing. They heard that that continued up to the point where sexual intercourse took place. So far as related to events in the club, that was supported by Nicola Miller. At no time did the jury hear any evidence to the contrary, supporting the appellant's instructions that kissing there had been consensual.
 The issue raised by the defence of consent was closely related, Mr Gilfedder submitted, to the issue of the complainer's credibility. If her evidence had been rejected by the jury as incredible, there could only have been one result, namely acquittal. Counsel had not followed the appellant's instructions on a material matter by not challenging the complainer's credibility as to the degree of familiarity between her and the appellant in the club. Failure to follow those instructions could not be regarded as a tactical decision within the proper bounds of counsel's discretion. Mr Gilfedder accepted that cross-examination of the complainer and Nicola Miller might simply have served to emphasise their adverse evidence. It was also accepted that the appellant had made no reference to familiarity in the club when interviewed by the police, but that was explained by the fact that the police asked very little about what had happened in the club. Counsel's decision not to pursue the issue of familiarity in the club was "contrary to 'the promptings of reason and good sense'" (McIntyre v H. M. Advocate 1998 JC 232, per Lord Coulsfield delivering the opinion of the court at 240H and quoting Rougier J in R v Clinton  1 WLR 1181). It was accepted that counsel had got answers from the complainer and Ms Miller that indicated that if he had put the point expressly to them, he would probably have elicited answers reinforcing their rejection of it. The failure to call Brian Russell as a witness, however, was not a mere tactical decision. It was beyond counsel's discretion. But that decision was predetermined by the failure to pursue the point with the complainer and Ms Miller. It was accepted, however, that counsel had explained the failure to call Brian Russell by reference to an apprehension that he might in the event give evidence adverse to the appellant, and because he thought that by his appearance he might make an adverse impression on the jury.
 Mr Gilfedder
began a comprehensive citation of authority on defective representation by
"The basic principles are not in doubt. On the one hand there is the right of the accused to a fair trial. That right includes the right to have his defence presented to the court. Whether he is represented by counsel, by a solicitor advocate or by a solicitor, his right is to representation in such a way that his defence will be presented to the court. This is in order that he may receive a fair trial on the charge which has been brought against him. On the other hand counsel or the solicitor who represents him is not subject to direction by the client as to how that defence is to be presented. He must act according to his instructions as to what the defence is. He cannot disregard those instructions and conduct the case as he himself thinks best. But the way in which he conducts the defence within the instructions which he has been given is a matter for him. And as a general rule the accused is bound by the way in which the defence is conducted on his behalf.
There is ... a tension between the principles which give a wide discretion to counsel to conduct the defence as he thinks fit and the duty of a court of criminal appeal to correct a miscarriage of justice on the ground that the accused did not have a fair trial. On the one hand the accused cannot be deprived of his right to a fair trial. If he is deprived of that right, there will be a miscarriage of justice in the proceedings ... which must be corrected by the appeal court. On the other hand the principles which affect the position of counsel are fundamental to the administration of justice in this country. Counsel's independence must be preserved if he is to fulfil his duty to the court and to act in the public interest on his professional responsibility. Any erosion of this principle would be bound to lead to uncertainty, and with it to the risk of delay and confusion in the conduct of criminal trials, which rely to a substantial extent for their fairness and efficiency on the right of counsel to exercise their own judgment as to the way in which the defence is conducted.
Accordingly it cannot be asserted as an absolute rule that the conduct of the defence by the accused's counsel or solicitor will not be a ground of appeal. But the circumstances in which it will provide a ground of appeal must be defined narrowly. The conduct must be such as to result in a miscarriage of justice, otherwise section 228(2) of the 1975 Act will not apply. It can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. That can only be said to have occurred where the conduct was such that the accused's defence was not presented to the court. This may be because the accused was deprived of the opportunity to present his defence, or because his counsel or solicitor acted contrary to his instructions as to the defence which he wished to be put or because of other conduct which had the effect that, because his defence was not presented to the court, a fair trial was denied to him."
 Mr Gilfedder
went on to cite the following additional cases: McIntyre; Garrow v H. M. Advocate 2000 SCCR 772; Hemphill v H. M. Advocate 2001 SCCR 361; E
v H. M. Advocate 2002 JC 15; Jeffrey v H. M. Advocate 2002 SCCR 822; D
v H.M. Advocate 2003 SCCR
664; McBrearty v H. M. Advocate 2004 JC 122; and Grant
v H. M. Advocate 2006 JC 205. He pointed out that Garrow, Hemphill and E were cases
concerned with preparation rather than presentation of the defence, although in
light of the observations of Lord Justice General Cullen, Lord Hamilton and
Lord Kingarth in Jeffrey (at
paragraphs 25, 3 and 6 of their respective opinions) it may be doubted whether
that is a material distinction. He drew
attention to the fact that in Garrow (at
paragraph 14) the appeal was allowed on the basis that the court was satisfied
that the system had broken down to such an extent that the appellant's defence
"was not properly presented to the jury".
He suggested that the test formulated in
"In some cases it may be difficult to draw the dividing line between a judgment made by counsel in the presentation of the defence and a failure properly to present it at all. But even in the area of professional judgment counsel may make a decision that is so absurd as to fly in the face of reason. In such a case, in our view, the court is entitled to hold that the defence was not properly conducted."
In Grant, in the context of whether leave to appeal on the ground of defective representation should have been granted, Lord Justice Clerk Gill, after reiterating at paragraph 21 that in order to succeed in such an appeal the appellant must establish that the conduct of his defence resulted in a miscarriage of justice, and that that can be said to have occurred only if his defence was not presented and he was therefore deprived of his right to a fair trial, said (at paragraph 22):
 In the light of these authorities, with which he did not quarrel, Mr Gilfedder examined certain aspects of the evidence. In evidence in chief the complainer said (transcript, page 20) that the appellant "was trying to give me cuddles and trying to give me kisses, but I was ... move my face, moved my cheek." In answer to a direct question as to whether she wanted him to kiss her, she said, "No". In cross-examination (at page 70) counsel said: "I'm not suggesting anything improper was taking place. You were talking and you were having a drink. You were getting on fine - is really all that I am saying?" The complainer answered, "Yes." The point was not pursued further so far as events in the club were concerned, although it was put to the complainer (at page 84) that she had kissed the appellant on the roadway before they went down the path, a suggestion which she rejected with the words, "I never kissed him". Nicola Miller, in examination in chief (at page 16 of the transcript of her evidence) accepted that the appellant came up to dance with the complainer, but said, "she'd had enough and she wanted to get away on her own, but he was being quite ... clingy. ... He was cuddling her and [? had his] arm round her." In cross examination (at page 30) counsel put to the witness that "there was a bit of cuddling going on and there was dancing going on between the accused and [the complainer]" and obtained the answer, "Aye". The point was not pursued further. In the appellant's own evidence, he was asked in examination in chief (at page 12 of the transcript of his evidence) whether [in the club] the complainer appeared to be friendly or unfriendly towards him, and answered, "She was friendly towards me". Asked how he was towards her, he answered, "I was friendly back". No reference in question or answer was made to kissing or cuddling at that stage. Asked (at page 21) about where there was first contact between him and the complainer en route, the appellant identified the place by reference to "Tool Hires", and said there had been no type of contact up to that point. In cross-examination (at page 47) he reiterated that there was no kissing before that point. The evidence that Brian Russell could have given had he been called as a defence witness could be gathered from his precognition (document 21), in which he said: "I thought they [the complainer and the appellant] were a couple. They were holding hands and had an occasional kiss". He added that he saw them walking up the road [after the complainer had been ejected from the club] and said: "They were holding hands I think. They appeared quite comfortable together."
 Mr Gilfedder then turned to the explanations offered by senior counsel for having approached the question of the evidence of familiarity between the appellant and the complainer in the club in the way he did. His original comments (document 16) were provided in February 2003, at a time when the transcripts of the evidence were not available. The transcripts were availably by the time he commented in June 2003 (document 20) on the additional grounds of appeal. In the second paragraph of document 16, counsel indicated that there was concern about the appellant's recollection of events being patchy, inconsistent and at odds with passages in his police interview. In the third paragraph, he summarised the evidence of the complainer and Nicola Miller as to the events in the club, but wrongly recollected that in cross-examination they had not accepted the suggestion that the complainer had been kissing the appellant in the club. As noted above, that point was not expressly put in cross-examination of these witnesses. Counsel went on to point out that in his police interview the appellant had made no mention of familiarity in the club, whereas at trial his instructions were that kissing had begun there. Since the view was taken that a favourable assessment of the appellant by the jury was vital to his defence, the question of the degree of familiarity in the club, which was to some extent accepted by the Crown witnesses, had to be seen in that light. So far as Mr Russell's evidence was concerned, it was contradictory not only of the Crown evidence (if only in degree) but also of the appellant's own evidence. It was seen as contrary to the appellant's interests to emphasise those contradictions. There was also concern about the impression Mr Russell's appearance and demeanour would have on the jury, and about how Mr Russell had been traced. Weighing up those considerations, it was considered better not to call Mr Russell, a decision which the appellant's evidence did not cause counsel to re-assess. The appellant accepted the advice not to call Mr Russell. In document 20, counsel implied that kissing in the club was irrelevant to the question of consent at the locus, pointed out that in his police interview at pages 11 and 12 the appellant denied that at the time of leaving the club he had any thought of having sexual intercourse with the complainer, and commented: "It may be therefore at least questionable how the defence of consent at the critical time would have been aided by clear unequivocal evidence of kissing etc. at the public house stage". Counsel went on to correct his recollection about the cross-examination of the complainer and Nicola Miller, and pointed out that when asked in examination in chief about how he was towards the complainer at the public house, the appellant said he was friendly, but made no reference to kissing taking place there. In document 25, dated 1 July 2004, counsel indicated that he was unable to recall whether he deliberately decided not to cross-examine the complainer and Nicola Miller about kissing in the club, and not to elicit evidence of such kissing from the appellant. That response, Mr Gilfedder said, was unsatisfactory.
 In all these circumstances, Mr Gilfedder submitted that the conduct of senior counsel at trial had not been within the scope of the reasonable tactical and strategic discretion entrusted to counsel. On the contrary, there had been a failure properly to present important aspects of the appellant's defence. Firstly, the complainer's credibility, on which the Crown case critically depended, had not been undermined as it should have been and would have been if she had been cross-examined about kissing in the club. The appellant had been deprived of his entitlement to have the complainer's credibility assessed properly. Secondly, the approach adopted meant that the defence of consent was not properly presented. That defence depended on the credibility of the appellant, as well as the attack on the credibility of the complainer. The appellant had been left in a situation in which his credibility on the question of consent was undermined rather than reinforced. Thirdly, on the question of whether or not the appellant had a genuine belief in the complainer's consent to intercourse, the evidence of the complainer's behaviour in the club was vital, and had not been properly elicited. Finally, the approach adopted to the cross-examination of the complainer and Nicola Miller and the evidence of the appellant affected the possibility of calling Brian Russell as a defence. He was a sober and independent witness, whose evidence would have been important if it had been led. The combined effect of those considerations was that the appellant's defence had not been properly presented; he had, as a result, not had a fair trial; and a miscarriage of justice had occurred.
(b) Submissions for the Crown
 At the outset of his submissions on this aspect of the appeal the Advocate depute laid before us the following observation, taken from the opinion of the court delivered by Lord Justice General Rodger in Mills v H.M. Advocate 1999 JC 216 at 221F-H, which, although made in an additional evidence case, he submitted was equally apposite in the context of alleged defective representation:
"[The] limit on an accused's room for manoeuvre at the appeal stage is not arbitrary but is, rather, a concomitant of the wide discretion enjoyed by an accused and his advisers as to how his defence should be deployed at his trial. An accused person who is served with an indictment receives a list of the witnesses against him. He and his advisers have the opportunity to investigate the case, to precognosce potential witnesses for the Crown and for the defence and then to decide in general how his case can best be presented and in particular what witnesses are to be led. Inevitably these decisions may be complex and may involve an assessment of the potential benefits and potential disadvantages of one course or another. The pros and cons may have to be constantly reassessed in the light of the evidence as the trial proceeds, But, for better or for worse, these decisions shape the trial and the evidence which the jury hear and on which they decide the case. The verdict is intended, whenever possible, to be final. That is in the interests both of the public and of the accused. It follows that an accused person and his advisers cannot decide, for strategic or tactical reasons, not to lead a particular witness and then, when the accused is convicted, ask this court to order a new trial so that he can adopt a different strategy or different tactics in the hope of achieving an acquittal at the new trial."
Similar considerations were stressed in Anderson and Jeffrey. When looking at counsel's explanation for the
approach adopted at trial, it was appropriate to bear in mind the complexity of
the considerations that had to be weighed in the course of the trial, the need
for constant reassessment of where the balance of advantage lay, and the effect
of the lapse of time on the ability of a busy practitioner to recall the detail
of those fleeting considerations, and
the court should therefore be slow to hold that counsel had gone beyond the
proper scope of his discretion in deciding how to present the defence. The appellant's right was to a fair trial,
not to a trial which could be said with the benefit of hindsight to have been perfect. E had
been regarded as relaxing to some extent the strict criteria laid down in
 This appeal,
the Advocate depute submitted, went no further than criticism of strategic and
tactical decisions taken by counsel within his legitimate professional
judgment. The decision not to call
Russell as a witness could not be said to be contrary to the appellant's
instructions to counsel, since the appellant had accepted the advice tendered
by counsel that Russell should not be called.
In the appellant's case, the defence was consent. That defence was undoubtedly put to the jury. It therefore could not be said that the
appellant's defence had not been "presented to the court" (Anderson, 131G; Grant,
paragraph 21). The reference in Garrow to the defence not being
"properly" presented did not relax the criteria laid down in
 The decision not to call Russell as a defence witness could only be said to constitute defective representation, the Advocate depute submitted, if there was no single reasonable explanation for taking that course. Even if that test were satisfied, the appeal could only succeed if Russell's evidence were of such materiality and cogency that a decision reached without its having been heard must be regarded as a miscarriage of justice. Two issues therefore required to be considered: first, was there a justification (any single justification being sufficient) for the decision not to call Russell; and secondly, how important would Russell's evidence have been if it had been led? So far as the first of these issues was concerned, if Russell had given evidence consistent with his precognition, he would have been saying something which the appellant himself did not say either in his evidence or in his police statement. That would have had the potential to undermine the credibility of the appellant. That by itself was reason enough not to call Russell. Moreover, the adverse view formed by counsel of the impression that Russell's demeanour and appearance might make on the jury was also sufficient reason not to call Russell. The same could be said of counsel's concern about how Russell had come forward as a witness. He did not come forward at the time of the police inquiries. Further, had the Crown witnesses been cross-examined in the way Mr Gilfedder suggested they should have been, and Russell had been led as a defence witness, there would have been created a conflict of evidence, which, in view of the absence of reference to familiarity in the club in the appellant's police statement, would almost certainly have been resolved in a sense unfavourable to the appellant. There were sound tactical reasons for not generating more conflicts of evidence than necessary. So far as the question of the importance of Russell's evidence was concerned, the view that it would have been important support for the defence of consent presupposed that it would be preferred to the evidence of the Crown witnesses and to the appellant's silence on the point. That was not an assumption that could be made. Moreover, as counsel had pointed out in document 20, the fact that the appellant in his police interview had said that when he left the club he had no thought of having sexual intercourse with the complainer made it difficult to suggest that what had happened in the club was material to whether there was ultimately consent, or a genuine belief in consent, to intercourse.
 So far as the approach to cross-examination of the complainer and Nicola Miller was concerned, that was justified, the Advocate depute submitted, by the consideration that to press the point further would have been likely simply to emphasise the conflict between the appellant's position and the Crown witnesses' evidence. Counsel was entitled to take the view that that would not have been to the appellant's advantage. So far as Nicola Miller was concerned, counsel in fact largely succeeded in drawing the sting of her evidence by leading her to accept that there was "a bit of cuddling going on" between the appellant and the complainer (transcript, page 30). What was gained by that exchange could readily have been lost by pressing the point further. Failure to put the point about consensual kissing expressly to the Crown witnesses did not preclude the leading of Russell's evidence, although it might have been a matter of comment (Mailley v H. M. Advocate 1993 JC 138; McPherson v Copeland 1961 JC 74). So far as the appellant's own evidence was concerned, he was given the opportunity to open up the question of kissing in the club when he was asked (at page 12 of the transcript) whether the complainer appeared friendly or unfriendly towards him. When he did not take the opportunity offered to refer to kissing in the club, counsel was justified in not pressing the matter, because, if the appellant had said in evidence that there was kissing in the club, he would have been vulnerable to cross-examination about the divergence there would then have been between his evidence and his police statement.
 In all these circumstances, the Advocate depute submitted, it could not be said that there had been a failure to put the appellant's case to the jury. The defence was consent, and that was clearly put. The decisions taken as to how to cross-examine the Crown witnesses about familiarity in the club, about how far to go in giving the appellant the opportunity to give evidence on that point, and about whether to lead the evidence of Russell, were all within the proper scope of counsel's discretion. In any event, it could not be affirmed, in the whole circumstances, that Russell's evidence, if he had given evidence in accordance with his precognition, would have been seen as material to the question of consent. There was therefore no ground for holding that there had been defective representation which deprived the appellant of his right to a fair trial and thus led to a miscarriage of justice.
 It is salutary, when considering an appeal advanced on the ground that the representation of the appellant at his trial was defective, to bear in mind the observations made by Lord Justice General Rodger in Mills (at 221F-H) and quoted in paragraph 28 above. They are as relevant to such an appeal as they were to the additional evidence appeal in which they were made. They, and the observations of Lord Justice General Hope in
 In this case the defence to the charge of rape was that the complainer consented to the sexual intercourse that admittedly took place between her and the appellant. That defence was undoubtedly put before the jury. This is therefore not a case in which it can be said in absolute terms that the defence which the appellant wished to advance, and counsel was instructed to advance, was not laid before the jury.
 The submission made on the appellant's behalf was that a material part of the defence was not laid before the jury. The particular part of the defence said not to have been laid before the jury related to the behaviour of the complainer towards the appellant in the club. The appellant's contention was that evidence should have been elicited that in the club the complainer willingly engaged in kissing the appellant. The materiality of that evidence was said to be that it would have had a bearing on the credibility of the complainer's evidence in general and on the question in particular of whether she subsequently consented to intercourse.
 As the submissions were developed, three strands of argument emerged. One related to the cross-examination of the complainer and Nicola Miller. It was said that it should have been put in specific terms to them that the complainer had willingly kissed the appellant in the club. The second strand related to the evidence of the appellant himself. It was said that he should have been asked specifically about whether the complainer willingly kissed him in the club. The third strand related to the defence witness, Brian Russell. It was said that he should have been called as a witness in order to give the evidence which he was understood to be able to give about kissing and other familiarity between the complainer and the appellant in the club. These contentions must be examined in light of the explanations given by counsel for conducting the defence in the way that he did.
 So far as the cross-examination of the complainer and Nicola Miller is concerned, Mr Gilfedder's submissions appeared to proceed on the assumption that it would have been to the appellant's advantage for counsel to have put the appellant's position, that there had been consensual kissing in the club, specifically to them. That seems to us to be an unwarranted assumption. In examination in chief the complainer had described trying to evade the appellant's attempts to kiss her and had said that she did not want him to kiss her. In cross-examination counsel had succeeded in having the complainer concede that she and the appellant were "getting on fine". To have pressed further would have run a substantial risk of eliciting a more vehement rejection of the proposition that there was consensual kissing. If the complainer's evidence had developed in that way, there was no assurance that the result would have been to diminish the complainer's credibility. On the contrary, against the background that the appellant had said nothing in his police interview about kissing in the club, the more likely effect would have been to undermine his position. In our opinion, it cannot be said that to refrain from such further cross-examination was an error on counsel's part, still less an error which no competent counsel would have made in the circumstances. On the contrary, counsel's approach is in our view readily understandable as one which could be thought to avoid an undesirable polarisation of evidence. Nicola Miller's evidence in chief had been that although the complainer wanted to get away from him, the appellant was "clingy", and was cuddling her. In cross-examination, counsel led her to accept that there was "a bit of cuddling going on" between the complainer and the appellant. So far as it went, that was favourable to the appellant's position. For similar reasons to those applicable to the evidence of the complainer, we do not think that counsel can be criticised for taking the view that his cross-examination had achieved as much as it was likely to achieve, and that it would not be likely to be to the appellant's advantage to press the point further.
 So far as the appellant's own evidence was concerned, the complaint was that he was not given the opportunity to give evidence in support of his own position, which was that there had been consensual kissing in the club. The background to that issue is that in his police interview, he said nothing about that. The explanation which Mr Gilfedder offered for that was that the police had asked little about what had happened in the club. It seems to us, however, that if the kissing in the club was thought to be of any significance on the issue of consent, the failure to mention it in his police statement would have laid the appellant open to adverse comment. It was therefore doubtful whether it would have been to the advantage of the appellant to give evidence which would have opened the way to cross-examination about his failure to mention kissing in the club to the police. In any event, it cannot in our view be said that the appellant was not given the opportunity to give evidence on the point. He was asked about whether the complainer was friendly towards him, and said that she was. The opportunity was there to develop the point and go on to mention the kissing, but the appellant did not take the opportunity. Again, we are of opinion that it was understandable that counsel should have thought it safer not to pursue the point, and thus not to give rise to an opportunity for an attack on the appellant's credibility.
 So far as the question of leading the evidence of Brian Russell was concerned, there were a number of interrelated reasons for considering that to do so would not be to the appellant's advantage. We do not consider that leading his evidence was precluded by the failure to pursuer further the cross-examination of the Crown witnesses (Mailley; McPherson v Copeland). Even adverse comment would have been of limited effect, given the distance that cross-examination did go. However, to lead Russell's evidence, if it was to the effect set out in his precognition, would have put him in conflict with the appellant, who had not mentioned kissing in the club either in his police statement or in his evidence. Russell's evidence would in that event have been likely to be harmful to the credibility of the appellant. That consideration required to be weighed against any advantage in setting up a conflict between Russell and the Crown witnesses (if indeed Russell's evidence, as foreshadowed in his precognition, as distinct from the fuller version contained in his affidavit (document 12), is truly in conflict with the Crown evidence rather than merely reflecting a different perception of events acknowledged in the Crown witnesses' evidence). Counsel's concern about the impression Russell might make on the jury, and about the circumstances in which Russell belatedly became available as a witness can in our view be regarded as reinforcing the concerns about the effect of the substance of his evidence if he had been led as a witness. In our view it cannot be said that the decision not to call Russell, which we understand the appellant accepted on advice, was one which no competent counsel would have taken in the circumstances.
 The question of the materiality of the issue about kissing in the club remains. In document 20 counsel implies (at least on one construction of it) that his view was that evidence of kissing in the club was not relevant to the question of consent to intercourse at the locus a mile and a half away. That perhaps overstates the position. Factors which bear on the materiality of familiarity in the club, however, include the fact that the appellant did not mention it in his police statement, and that in that statement he said that he had no thought of having intercourse with the complainer at the time they left the club. Counsel was, in our view, entitled to think (and, we think, seeks to explain in document 20, when read as a whole) that it was better to treat what happened in the club as having little bearing on what happened at the locus, rather that make much of the point and set up a conflict of evidence which the jury, to put the matter no higher, might resolve in a way adverse to the appellant's position.
 In our view the circumstances presented counsel with a number of related issues as to how best to conduct the defence of consent. Plainly the credibility of the complainer was critical to the Crown case, but equally the credibility of the appellant was critical to the defence of consent. The approach to the cross-examination of the Crown witnesses about what happened in the club, to the appellant's position on the same subject, and to the desirability of leading Russell as a defence witness was in that situation a matter that involved the weighing, and reassessment, of potential benefits and disadvantages at various stages in the trial. In our view the criticisms which have been made of the way in which counsel conducted the defence, if they have any merit at all, fall far short of the standard that could constitute a failure properly to lay the appellant's defence before the jury. It cannot, in our view, be said that counsel conducted the defence in a way in which no competent counsel would have conducted it. On the contrary, the conduct of the defence was, in our view, well within the scope of the reasonable exercise of counsel's discretion. It follows that the appeal on the ground of defective representation (ground 1) fails.
(a) Submissions for the appellant
 In ground of appeal 2, reference is made to additional evidence from three witnesses, namely Brian Russell, John Campbell and Gordon Young. In making submissions in support of ground 2, however, Mr Gilfedder confined his attention to the evidence of Gordon Young.
 Section 106(3)
of the Criminal Procedure (
"... in my view it would be difficult, if not impossible, for evidence to be admitted at the stage of an appeal if a tactical decision was taken not to introduce it at the trial. Likewise, if the explanation were merely that the appellant was not aware of the existence of the witness; or, where he was aware of the existence of the witness, he was not aware that he was able or willing to give evidence of any significance, this would hardly provide 'a reasonable explanation'. But it might be different if the appellant also could show that at the time of the trial he had no good reason for thinking that the witness existed, or, as the case might be, that he would give the evidence in question. Thus much might depend on the steps which the appellant could reasonably be expected to have taken in the light of what was known at the time. The underlying intention of the ...legislation is that the court should take a broad and flexible approach in taking account of the circumstances of the particular case."
On the question of the significance of the additional evidence, he referred to the propositions summarised in Megrahi at paragraph 219.
 Gordon Young
is the owner of the
"Turning now to the couple in question they only came to my notice on two occasions during the course of the evening. The first time they drew themselves to my attention was when they were both up at the bar together to get a drink and were standing at the bar necking with one another. I thought this was a bit embarrassing not only for myself but for other customers and it did cross my mind to say something to them although they stopped before I got to that stage."
The second time they came to his attention was when the complainer was sick.
 Mr Gilfedder
referred to a letter from the trial solicitors dated
"I was unaware of the existence of the witnesses John Campbell and Gordon Young. In the course of preparing for the trial a number of potential defence witnesses were written to. [There follows a list of eight names.] The Appellant did indicate that he considered that there was CCTV footage but as the Appellant's new Agents will confirm the CCTV footage does not exist."
Mr Gilfedder went on to explain that in preparation for the appeal a precognition agent carried out inquiries about whether there was CCTV footage of the night in question. In doing so, he spoke to Gordon Young, who said that he remembered the night, and offered the evidence reflected in his affidavit. There was, Mr Gilfedder submitted, no reason at the time of the trial for the appellant to believe that Gordon Young existed and was in a position to give evidence on the point of familiarity between the complainer and the appellant in the club. The police made inquiries at the time. A Memorandum from the reporting officer to the Procurator Fiscal dated 13 May 2003 recorded that apart from an unidentified doorman, who gave a statement that was judged to be of no evidential value, no other person from the club came forward to make a statement. If the police inquiries did not uncover Gordon Young as a potential witness, it was not reasonable to expect the defence to have done so. There was therefore a reasonable explanation for Gordon Young's evidence not having been led at the trial.
 So far as significance was concerned, Mr Gilfedder's submission was that at face value Gordon Young's evidence would have been material in the same way as Brian Russell's evidence would have been. The jury might have assessed the evidence on the issue of consent, and the complainer's credibility, differently if it had heard Gordon Young's evidence of the complainer and the appellant "necking". He acknowledged, however, that, if his submission was accepted, the witness would need to be heard in evidence to judge whether he was capable of being regarded as credible and reliable, and to judge on a more informed basis the question of the potential significance of his evidence.
for the Crown
 The Advocate depute submitted that the first issue to be addressed in respect of the ground of appeal based on additional evidence was whether there was a reasonable explanation of why it had not been heard at trial (section 106(3A)). He referred, by way of background, to Beattie v H. M. Advocate 1995 JC 33, per Lord Justice General Hope at 41B-C, to the passage already quoted from Campbell and Steele, and to Barr v H. M. Advocate 1999 SCCR 13 at 17D-E. He submitted that if, at the time when preparation was being made for the trial, the appellant's position had been that there had been consensual kissing in the club, and that that had a bearing on the question of consent, either directly or in relation to a genuine belief on his part that the complainer consented to intercourse, it was difficult to see why that point had not been made to his solicitors, and investigation had not been made to see who were the staff on duty and what, if any, evidence they could give on the point. The appellant's affidavit (document 15) suggests that he drew to his solicitors' attention that the bouncers would be able to say that the complainer left the club with him willingly, but makes no mention of having raised with them the question of kissing in the club. The fact that the police investigation did not uncover Gordon Young as a witness had to be viewed in the context that, so far as the police were aware from the appellant's statement to them, nothing turned on what had happened in the club. No reasonable explanation for his evidence not being heard at the trial had been put forward.
 So far as significance was concerned, the criteria to be applied were to be found summarised in Megrahi at paragraph 219. It was to be noted that Young's apparent evidence was in conflict with the appellant's silence on the point both in his police statement and in evidence. It was not open to the appellant to take the line he did in his statement and in evidence, then bring forward as additional evidence material inconsistent with the position advanced at trial. It was difficult to suppose that Young would not have been aware of the investigation into the rape allegation at the time, yet he did not come forward then. That cast doubt on his credibility and reliability - although that question could be more fully explored if the court decided that it was necessary to hear his evidence. In considering the materiality of his evidence, it was relevant to ask whether, if his evidence had been available at the time of the trial, it would have been led. It was questionable whether it would have been. Its materiality to the issue of consent was difficult to reconcile with the appellant's statement to the police that he was not contemplating intercourse with the complainer when they left the pub. Looking at the reality of the trial, it could not be said that Young's evidence, even at face value, was evidence which it was likely that the jury "would have found ... of material assistance in its consideration of a critical issue at the trial", and which would have been "likely to have had a material bearing on, or a material part to play in, the determination ... of a critical issue at the trial" (Megrahi, paragraph 219(5) and (6)).
 In our opinion, ground of appeal 2 fails to satisfy the criterion set by section 106(3A). The appellant has not put forward a reasonable explanation of why the evidence of Gordon Young was not heard at the trial. Assuming it to have been the appellant's position at the time of preparation for the trial that the complainer had been willingly kissing him in the club, an obvious line of investigation prior to the trial would have been whether any of those present in the club could confirm the appellant's position. One group of people who might have been in a position to give such evidence was the staff of the club. Evidence from them would have had the advantage of coming from persons who were presumably sober at the time, and who might well have been capable of being regarded as independent and objective. While the agents say that they were unaware of the existence of Gordon Young, he was a member of a class of witness whose ability to confirm the appellant's position could readily in our view have been investigated, namely the staff of the club. It seems to us that the steps by way of investigation that could reasonably have been undertaken on the appellant's behalf go beyond merely contacting witnesses suggested by the appellant, but include those steps that could and should have been undertaken if thought had been applied to possible sources of helpful evidence. It would not have been difficult to find out who were on duty in the club on the night in question, then to precognosce them. On that basis Young's evidence is evidence that would, if it is true, have been uncovered in the course of reasonable investigation in preparation for the trial. Ground of appeal 2 therefore fails.
 Since no reasonable explanation has been tendered for Young's evidence not having been heard at the trial, the question of the significance of his evidence does not arise. It is therefore unnecessary for us to consider that question.