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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Osborne
Lord Johnston
Lady Cosgrove
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[2008] HCJAC 32
Appeal No: XC441/05
OPINION OF THE COURT
delivered by LORD OSBORNE
in
APPEAL
by
PETER MULLIGAN
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Act: Shead, Advocate; Rollo Davidson & McFarlane, Cupar
Alt: Stewart, Q.C., Advocate
Depute; Crown Agent
18 June 2008
The Background Circumstances
[1] The appellant
faced an indictment containing a single charge in the following terms:
"On 23 April
2004 at West
Sands, St
Andrews, Fife you did assault [the complainer] and
did seize and pull her by the hand, push her to the ground, forcibly hold her
down, pull down her trousers and underwear and you did rape her."
[2] The appellant
lodged a special defence of consent and pled not guilty. He was convicted after trial on the charge,
as libelled, on 4 May 2005.
On 25 May 2005 an extended sentence in terms of
Section 210A of the Criminal Procedure (Scotland) Act 1995 was imposed, the
custodial term being one of five years imprisonment and the extension period
being one of two years. By a Note of
Appeal lodged on 25 August 2005, the appellant sought to appeal
against both his conviction and sentence on several grounds. Leave to appeal against conviction was
granted only on ground of appeal 2.
Leave to appeal against sentence was refused.
[3] The
circumstances of the offence, as disclosed in the evidence and as described in
the report of the temporary judge, were as follows. The complainer, who was aged 14 years at
the time of the offence, together with some of her school friends had purchased
alcohol on the evening in question. They
had added that to various bottles of coke and the like and had gone to join
other school friends in the area of the West Sands in St Andrews, where young people tended to
meet. The girls had consumed some of the
alcohol when they met the appellant, then aged 26 and a friend, Leslie Kirk,
aged 27. These two men had been
driving in the appellant's motor vehicle when they offered the complainer and a
friend a lift. That offer was accepted
and a third schoolgirl friend was also picked up. The car was then driven to and fro in the
town and near the beach, with these girls as willing passengers. At one stage, the complainer had been in the
front passenger seat of the vehicle with the appellant and had willingly kissed
him. At a later stage, one of the other
girls had become alarmed at the way matters were developing and had wanted to
leave the car to rejoin her other friends.
She and the other girl had left the car at that stage, with the result
that the complainer had been left alone with the appellant and his friend. At that time at least, it appeared that the
complainer remained willingly with the appellant and may have expressed a
desire to go on to the beach with him.
[4] In any event,
the complainer did go on to the beach with the appellant. She claimed that he had pulled her down a
sandbank and proceeded to commit the act complained of despite her asking him
to stop. It appeared that a degree of
force had been used to achieve this, but there was no question of the
complainer being struck. In his
interview with the police, the appellant conceded that he had had carnal
connection with the girl, but claimed that it had been with her consent. He further explained that he had ceased
connection before ejaculation, because she had said that she was a virgin. In fact, she was not, since she explained to
the doctor who examined her afterwards that she had already had sexual
intercourse on one occasion and also there was medical evidence to confirm that
that had occurred. All these matters
were before the jury, who came to the conclusion that the sexual intercourse
complained of was against the complainer's wishes and that the crime libelled
had been established.
[5] The temporary
judge completes his account of the relevant events by explaining that it
appeared that the complainer had lost her mobile telephone in the course of the
events described. She had apparently
gone back on to the beach to look for it, at which point the appellant and his
companion had driven off leaving her.
She was found near the place in question a few minutes later in a state
of distress. She had then explained to a
passing motorist, who had given her a lift back to where her friends were, that
she had been sexually assaulted and confirmed that account when she met her
friends again. The appellant had been
traced through a mobile telephone number that some of the girls had been given
by his friend. The appellant had
voluntarily attended at a police station the next day and had given the same
account of matters as he maintained throughout, namely that intercourse had taken
place, but with the consent of the complainer.
He had also stressed that the act had not been completed.
Ground of Appeal 2
[6] The only
ground of appeal in respect of which leave has been granted is in the following
terms:
"2. The
Crown led evidence from Crown witness No. 16
D.C. David Lyall. He was one
of the officers who conducted the two police interviews with the
appellant. Labels 1 and 2, which
were the tapes of said interviews, were played to the jury in their
entirety. During cross-examination of
this witness, counsel for the appellant put to the witness that there might
have been other reasons for the fact that after the incident she was seen to be
distressed. One of the reasons that was
being advanced was that at the time of the incident, the complainer was a
virgin and was distressed at having engaged in sexual intercourse, for the
first time, with an older man, on a beach.
The trial judge intervened and essentially indicated that it was not
true that the complainer was not (sic)
a virgin. Whilst the Crown were in
possession of a police statement from the complainer, stating that at the time
of the incident she had 'had sexual intercourse once before' and whilst the
Crown had lodged a Section 275 application under the Criminal Procedure
(Scotland) Act 1995 to elicit evidence that at the material time she was
not a virgin (which application had been granted) the Crown chose, it is
understood deliberately, not to elicit any such evidence anent previous sexual
behaviour. Counsel for the appellant did
not ask the complainer any questions about her previous sexual history. In the circumstances the trial judge's
intervention was inappropriate, et
separatim, had the effect or potential effect of undermining the defence
position.
Separatim the Crown also called Crown
witness No. 10 Kranti Hiremath, a forensic medical examiner with Fife
Constabulary. She was the joint author
of Crown Production No. 7 which was a record of a medical examination of
the complainer conducted the day after the alleged incident. In that report, at page 3, it was
recorded that the complainer 'had previously had sexual intercourse only on one
occasion at the end of last year'.
Again, no doubt due to the fact that the Crown had chosen not to ask the
complainer herself about her previous sexual history, the Crown did not seek to
elicit this hearsay evidence from this witness.
Nonetheless at the end of her evidence the learned trial judge
specifically asked the witness to tell the court what the complainer had told
the police, and which the police had relayed to her, about the complainer's
previous sexual history. Said question
resulted in hearsay evidence being admitted.
Separatim in his report dated
25 May 2005 the learned trial judge stated at page 2, 'In his interview
with the police, the accused conceded that he had had connection with the girl
but claimed that it was with her consent.
He further explained that he had ceased connection before ejaculation
because she had said that she was a virgin.
In fact, she was not, because she explained to the doctor afterwards
that she had already had sexual intercourse on one occasion. All these matters were before the jury ...' Said matters were only before the jury
because of the trial judge's actions.
Separatim in his charge to the jury the
trial judge directed the jury that in finding corroboration for the lack of
consent they could consider the evidence of distress as spoken to by other
witnesses. Whilst he did say, at
page 7, that the jury had to be satisfied that the distress was related to
the intercourse and not just the general situation in which the complainer
found herself, he went on to say at page 11: 'I might say in this regard that
Mr MacKenzie's theory that he put to you for your consideration about her
distress perhaps being related to her losing her virginity doesn't appear to
square with the medical evidence ...'.
Again that evidence was only before the jury because of the actions of
the trial judge.
Separatim in his charge, at no stage
(which is perhaps unsurprising in the context of the way in which the medical
evidence came to be before the jury) did the trial judge direct the jury in
relation to hearsay evidence. The trial judge's
actions had the effect of undermining the appellant's position and so constituted
a miscarriage of justice."
Submissions for the
Appellant
[7] Having drawn
attention to the terms of ground of appeal 2, counsel for the appellant
stated that it had not been put to the complainer that she had had a sexual
history, despite the order that had been made under Section 275 of the
1995 Act. He then referred to what
had occurred during the course of the evidence of D.C. Lyall, as revealed
in the transcript of his evidence. He
had been one of the officers who gave evidence concerning a police interview
with the appellant, the tape recording of which had been played. At page 45 of the transcript of evidence
for 3 May 2005 this witness had been cross-examined by counsel for
the appellant. It was suggested to him
that one reason for distress on the part of the complainer "was because she was
a virgin and she was upset at herself at 14 years of age giving herself up
to an older man on a beach and realising she probably should not have done
that ...". Following the repetition
of that suggestion to the witness, the trial judge intervened. The transcript of his intervention appears at
page 46:
"Temporary
Judge: Well, Mr MacKenzie,
is that right? One of the facts that you
mentioned there isn't right, as you know.
She wasn't a virgin.
Mr MacKenzie: Well, there has not been any
evidence about that, My Lord.
Temporary
Judge: Well, there will be if
the medical report is before the court.
Mr
MacKenzie: Well, I might
have something to say about that, My Lord.
Temporary
Judge: Well, I don't think you
should put it to the Detective Constable in that way if it might not be
accurate is all I am saying.
Mr
MacKenzie: Well, with
respect, My Lord, we don't know whether it is accurate or not. The complainer was never asked about it."
Thereafter cross-examination of the witness continued in
relation to other matters.
[8] Counsel
submitted that this intervention by the trial judge was open to criticism upon
two grounds, first, that there was no evidential basis for it; and second, that the intervention took place
in the presence of the jury. It had been
wrong and had had the effect of undermining the defence. The evidential situation at that stage in the
trial was that the court had before it only the material in the interview of
the appellant with police officers. At
page 41 of that document the appellant had said that when he had inserted
his penis into the body of the complainer she had said to him that she was a
virgin, which had caused him to stop.
Counsel contended that if the trial judge had been concerned about the
manner of cross-examination of D.C. Lyall, the jury should have been asked
to leave the court, while the matter was dealt with. Counsel submitted that the situation had been
exacerbated by the trial judge's subsequent conduct set out at page 53 of
the transcript of the evidence of the third day of the trial. At that part of the proceedings the trial
judge had asked D.C. Lyall about the thrust of information given to the
police by Leslie Kirk. There
followed an interchange between counsel for the appellant and the trial judge,
in which the former sought to object to the eliciting of hearsay material by
the latter.
[9] Counsel
contended that, in consequence of these interventions, the appellant had been
denied a fair trial. A fair-minded and
well-informed observer would have had concerns about these events. However, the matter became worse when the
remaining transcripts were considered.
He relied, in this connection on the evidence of Dr Hiremath at
pages 9-14, 17 and 29-32 of the transcript of evidence for 5 May
2005. She had testified to a healed tear in the
hymen, which was consistent with previous sexual activity. There had been a further intervention by the
court at page 32 of this transcript, where the witness had been asked
about the history that she had been given by the complainer, who had informed
her that she had had sexual intercourse on a previous occasion. Following upon this intervention by the trial
judge, counsel for the defence had asked
a further question, which had provoked a comment by the trial judge that the
question was unfair, as appeared from page 34 of the transcript. Once again these things had occurred in the
presence of the jury. The propriety of
counsel's questioning had been impugned by the trial judge at page 34 of
the transcript. It was not being said
that the subject matter of this questioning was improper, although it dealt
with hearsay material, since it could have been a relevant prior statement by
the complainer. However, the complainer
herself was not recalled as a witness to deal with the matters concerned. The Crown, having obtained leave in terms of
Section 275 of the 1995 Act should have availed themselves of their
right to explore the matter of previous sexual experience, but did not. Counsel contended that the effect of what had
occurred was that the jury were disabled from considering alternative
explanations for evidence of distress.
Furthermore, in the light of the judge's directions, the jury may have
been confused relating to the matter of previous sexual experience. What was said at page 11 of the
transcript of the charge to the jury was couched in inappropriate terms. In addition, it was submitted that the trial
judge had misled the jury in relation to the evidence, or its effect. The case of Hutchison and Harper v Her
Majesty's Advocate 1983 S.C.C.R. 504 was of assistance in the
circumstances of the present case. In
that case the conduct of the judge and prosecutor had been the subject of
criticism. However, the court had held
that no miscarriage of justice had occurred, since there had been overwhelming
evidence of guilt and powerful directions given to the jury. Those features were absent in the present
case. No particular cogent directions
had been given to the jury. The trial judge's
interventions must have had an adverse impact on the credibility of the
appellant. His handling of the situation
had been inappropriate.
Submissions of the
Crown
[10] The Advocate depute
moved the court to refuse the appeal. If
the conviction for rape could not survive, he moved the court to substitute for
it a conviction in terms of Section 5 of the Criminal Law (Consolidation)
Scotland Act 1995, since there had been sexual intercourse between the
appellant and a 14 year old girl, as a matter of admission. The submission of the Crown was that, first,
the actions of the trial judge did not constitute a miscarriage of justice; second, the verdict was one that a reasonable
jury could have reached. The background
to the matter included the fact that the appellant had not himself given
evidence. His mixed statement to the
police at interview had been put before the jury.
[11] Ground of
Appeal 2, which alone was involved, was made up of five separate
parts. Turning to deal with the first
part of that ground, which was focused upon the trial judge's intervention when
D.C. Lyall was giving evidence, it was submitted that the defence position
had been wholly without evidential foundation and had not properly been raised
in questioning. Thus the trial judge was
entitled to intervene. The position had
been that the appellant, in his statement to the police, had spoken of
desisting from intercourse because the complainer had said to him that she was
a virgin. There was no material before
the court to connect the alleged virginity of the complainer and its loss and
the distress displayed by her following the event. However, there had been no cross-examination
at all of the complainer to the effect that she had been distressed for any
reason other than that sexual intercourse had been forced upon her. The trial judge had been quite entitled to
take up the issue of the formulation of questions by counsel for the appellant,
although he might more appropriately have done so in the absence of the jury.
[12] Parts 2
and 5 of the Ground of Appeal 2 could be dealt with together. The fact was that the trial judge had in fact
elicited hearsay evidence, although it had not been objected to as such. It could not be said that that evidence was
of decisive influence. The actual line
of defence at the trial was that intercourse had been consensual, but that the
appellant had desisted when the complainer stated that she was a virgin. Furthermore, the defence position was that
the girl had been fine after the event.
The complainer had never been cross-examined as to the cause of any
distress which witnesses said she had displayed. To be set against that was the fact the
medical evidence of forcible intercourse was powerful. It would have been unreasonable for the jury
to reject that evidence. It was
submitted that there was no miscarriage of justice arising out of this aspect
of the case. While the trial judge's
intervention had been unfortunate, the so called defence theory, that distress
had arisen out of the loss of virginity rather than any rape was not in fact
the defence that was advanced at the trial.
[13] Part 3 of
ground of appeal 2 seemed to relate to the terms of the trial judge's
report, dated 25 May 2005.
The contents of a report had no relevance to the issue of whether a
trial had been fair or not.
[14] In part 4
of ground of appeal 2 there was criticism of the terms of the charge to
the jury in relation to the matter of distress.
What the trial judge had said was quite justified, upon the basis of the
medical evidence which was to the effect that the complainer had not been a
virgin at the material time. In all the
circumstances the appeal should be refused.
[15] At this stage
in the proceedings counsel for the appellant made certain submissions in
relation to the issue of whether an alternative verdict should be substituted
for that reached by the jury, in the event of the jury's verdict being quashed.
Further Procedure
[16] In the light
of the submissions which we have narrated, we reached the conclusion that,
before a decision could properly be made, there should be available to the
court transcripts of (1) the whole evidence of the complainer; and (2) the speeches to the jury of the
Advocate depute and counsel for the appellant.
Accordingly the case was adjourned for the purposes of obtaining such
transcripts. It was a matter of
agreement that, when those transcripts had become available, parties should be
afforded a further opportunity of making submissions to the court upon them.
Further submissions for
the Appellant
[17] Counsel began
by rehearsing the background to the case and the submissions which he had
previously made, which he proceeded to elaborate. The gravamen of the appellant's complaint was
that the intervention of the trial judge had undermined the defence. He had suggested that defence counsel had
been behaving unprofessionally. The
matter should have been handled in a different way, outwith the presence of the
jury; if necessary, the complainer could
have been recalled for further cross-examination. The trial judge may have had a legitimate
anxiety regarding the handling of the case, but his own response to that
concern was inappropriate. The jury
would have been entitled to infer that the complainer had been a virgin at the
material time, since she had said that to the appellant. There was thus an evidential basis for
questioning along those lines. In
connection with the eliciting of hearsay evidence, counsel relied on Nulty v Her Majesty's Advocate 2003 S.C.C.R. 378, particularly
the observations of the Lord Justice Clerk in paragraphs 13 and
following. If hearsay evidence was
admitted, directions should be given to a jury regarding its significance. Counsel for the defence at the trial had
understandably indicated in his speech to the jury that they would be given
directions regarding hearsay evidence, but that did not happen.
[18] It was
accepted that counsel at the trial had not examined witnesses in an ideal
fashion, but, nevertheless, the trial judge's intervention was
inappropriate. By intervening he had
undermined the defence.
Further submissions for
the Crown
[19] The Advocate depute
renewed the motion previously made. He
did not shrink from addressing the difficulties to which the trial judge's
actions had given rise. However, he
submitted that they did not constitute a miscarriage of justice. Problems which arose in the course of the
trial had not been dealt with in a text book manner; the correct approach would have been to have
dealt with those problems in the absence of the jury. As regards the first part of Ground of
Appeal 2, the nature of the intervention of the trial judge was not such
as to undermine the defence position. It
had not been a legitimate part of the defence case that any distress observed
on the part of the complainer had been caused by her loss of virginity. The defence position, based upon the
statement of the appellant was that she had not been distressed. The defence case had been put to the
complainer between pages 94 and 96 of the transcript of her
evidence. No point was made there
concerning distress, or its causation.
Accordingly it was an improper course for D.C. Lyall to have been
questioned as he was at page 45 of the transcript of his evidence. The trial judge was quite correct to be
concerned about the premise upon the basis of which counsel for the appellant's
questioning had proceeded.
Section 118(8) of the 1995 Act was relevant to certain of the
points raised on behalf of the appellant.
If hearsay evidence was admitted without objection, its admission could
not be made the basis for an appeal. In
any event, any hearsay evidence admitted was not of a decisive character. As regards the trial judge's charge to the
jury, the defence case was plainly put to the jury at page 11 of the
charge. The Crown case at trial had been
a strong one; any irregularities in the
procedure which was followed had not resulted in a miscarriage of justice.
The Decision
[20] As will be
seen from our narrative of the submissions made to us, the principal focus of
the appellant's argument was the first part of ground of appeal 2. That is concerned with the intervention of
the trial judge during the course of cross-examination of D.C. Lyall. We have already quoted the particular passage
concerned. The questioning at
page 45 of the transcript involved putting a theory to the witness to the
effect that a reason for the distress of the complainer was because she had
been a virgin and had been upset by the loss of her virginity to an older man
on a beach. Quite apart from the fact
that there did not appear to be any evidential basis for this theory and from
the fact that it was a theory which had not been put to the complainer herself,
which it ought to have been if it was being seriously advanced, the premise
upon which the questioning proceeded was that, until the events giving rise to
the charge, the complainer had been a virgin.
Given that situation and the fact that the medical report relating to
the complainer's examination following the event indicated that she had had
previous sexual experience, it is entirely understandable that the trial judge
was concerned as to the manner of the questioning. No doubt, it would have been possible for
counsel for the defence to frame his questions in a manner which took account
of that state of affairs, but he did not do so.
At page 46 of the transcript the trial judge made that very point
when he said:
"Well, I don't think you should put
it to the Detective Constable in that way if it might not be accurate is all I
am saying."
That was the core of the intervention.
[21] We would
readily agree that the way in which this situation was handled by the trial
judge was not ideal. If, as
understandably he did, the trial judge had concerns about the formulation of
the questions being put to the witness in cross-examination, the better course
would have been to ask the jury to withdraw from the court while the issues
relating to the manner of questioning were discussed and resolved. Obviously, if that course is not followed,
there may be a risk that the jury might construe the trial judge's intervention
as a serious criticism of the conduct of the defence case. Such a risk should, of course, be avoided, if
possible. However, looking at the
language used by the trial judge in his intervention at this point in the case,
we are not persuaded that it could have had the effect of undermining the
defence case, or the standing of defence counsel. What the trial judge said seems to us to
amount to no more than the temperate expression of legitimate concern as to the
manner of questioning. We are not
persuaded that a fair-minded and well-informed observer of the proceedings
would have been caused to become concerned as to the fairness of them. In these circumstances we cannot regard this
part of the ground of appeal as giving rise to a miscarriage of justice.
[22] We agree with
the position taken up by counsel in the appeal before us that parts 2
and 5 of ground of appeal 2 may properly be considered together. These parts of the ground of appeal arise
from the questioning of Dr Hiremath, who was the joint author of a report
of a medical examination of the complainer conducted the day after the alleged
incident, Crown Production No. 7.
She gave evidence concerning the examination of the complainer's hymen,
without objection. She spoke of
observing a healed transection of the hymen, which she opined was consistent
with previous sexual activity, at page 13 of the transcript of her
evidence. She also spoke to a series of
recent injuries which she considered were greater than would have been expected
to result from consensual sexual intercourse.
At page 17 of the transcript she said that she had never seen
consensual sex producing that amount of injuries. At page 32 of the transcript of the
cross-examination of Dr Hiremath, the witness was asked by the court whether
it was part of the history she had been given that the complainer had in fact
had sexual intercourse on a previous occasion.
No objection was taken to that question.
The witness said that she had asked the complainer, since it was
important for the examining doctors to know.
She agreed that that was what she had been told. Elaborating that answer she stated that she
had been informed that that had occurred on one previous occasion. The incident had occurred a few months before
the incident which gave rise to the proceedings. Following upon that intervention, counsel for
the defence sought leave to ask a question arising out of it, which was
allowed. There then followed the putting
of the following question by counsel for the defence:
"Doctor, if that is the account that
you have got, you have no way of knowing whether that account is true or not
because I can tell you that when she gave evidence she never mentioned anything
about that?"
That question appears at page 33 of the transcript. It was not answered. Following upon the putting of that question
the trial judge intervened to observe: "Well,
that is an unfair question. She was
never asked about that." There then
followed a discussion between the trial judge and counsel for the defence
concerning that matter. It was followed
by a resumption of cross-examination by counsel for the defence by the putting
of the following question:
"Now you found a tear, yes? Let's say she had had some previous sexual
activity. That would seem to indicate
that on the previous sexual activity she got injury, yes? Yes."
At that point the cross-examination ended. There was re-examination by the Advocate depute,
in which, so far as it is relevant, the matter of the tear to the hymen was
raised again. The witness agreed that
there was objective material which she had observed to confirm the account of
the complainer in the history that she had given to the police that she had not
been a virgin at the time of the incident giving rise to the charge.
[23] In part 2
of the ground of appeal the trial judge is criticised for having specifically
asked Dr Hiremath to tell the court what the complainer had told the
police and which they relayed to the witness about the complainer's previous
sexual history. It is of course true
that that is what occurred. However, no
objection was taken by counsel for the defence to that line of
questioning. Standing that, it is
difficult to see how the appellant can avoid the consequences of
Section 118(8) of the 1995 Act.
In any event, what was said in answer to this questioning, that the
complainer had had previous sexual experience on one occasion some months
before the present incident, was amply
supported by the real evidence observed by Dr Hiremath and spoken to by
her, in the form of a healed ruptured hymen.
In these circumstances, it is difficult to see how the admission of the
hearsay evidence referred to could amount to a miscarriage of justice. For the same reason we do not consider that
the absence of some specific direction relating to the evidence concerned could
be so characterised. As regards the
intervention by the trial judge following the putting of the question narrated
above, we regard it as the wholly justified response to a disingenuous and
misleading question by counsel for the defence.
It could not amount to a miscarriage of justice.
[24] As regards part 3
of ground of appeal 2, it amounts, in our opinion simply to a reiteration
of the criticisms ventilated in Part 2 of the ground of appeal.
[25] Turning
finally to part 4 of the ground of appeal, the point made is focused upon
the significance of the distress on the part of the complainer, spoken to by
other witnesses. It appears to us that
two separate points are made and were elaborated in argument. First, at page 7 of the transcript of
the charge to the jury, where the trial judge was dealing with the significance
of distress, he said that before evidence of distress could be used to
corroborate lack of consent, it had to be shown that the distress was related
to the "intercourse" and not the general situation in which the complainer had
found herself after the event. It was
contended that the trial judge should have referred to the alleged rape, as
opposed to intercourse. While no doubt
ideally that would have been said, in our opinion, in the context of the charge
as a whole, it was made perfectly plain that what the trial judge was talking
about in that passage was the forcible intercourse alleged by the Crown. In these circumstances we cannot regard the
language used by the trial judge as amounting to misdirection of the jury. The second point which arises out of the
terms of this part of the ground of appeal relates to the passage to be found
at page 11 of the transcript of the charge. There the trial judge said:
"I might say in this regard that
Mr MacKenzie's theory that he put to you for your consideration about her
distress perhaps being related to her losing her virginity doesn't appear to
square with the medical evidence although on any view, as I have already said,
she does seem to have been a sexually inexperienced girl."
It appears to us that that observation is entirely justified,
having regard to the medical evidence led from Dr Hiremath. It cannot be said that there was anything
objectionable about the evidence led from that witness. It cannot be said that the evidence was only
before the jury because of the actions of the trial judge. The fact was that the medical evidence about
the condition of the complainer's hymen was led legitimately by the Advocate depute
without objection. In all the
circumstances, in our opinion there is no substance in this part of the ground
of appeal.
[26] In the whole
circumstances, we have not been persuaded that a miscarriage of justice has
occurred in this case. Accordingly the
appeal is refused.
