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APPEAL
COURT, HIGH COURT OF JUSTICIARY
[2008] HCJAC 59
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Lord Wheatley
Lord Reed
Lord Carloway
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Appeal No: XC 360/03
OPINION OF THE COURT
delivered by LORD CARLOWAY
in the referral by the Scottish Criminal Cases
Review Commission
DAVID JOHN SWANKIE
Appellant;
against
HER MAJESTY'S ADVOCATE,
Respondent:
_______
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Appellant: Shead; George Mathers & Co., Aberdeen
Respondent: P. W.
Ferguson Q.C., A.D.; The Crown Agent
14 October 2008
The Proceedings at First Instance
(a)
General
[1] The evidence
against the appellant led by the crown at the trial, were
it to be believed, was overwhelming. The jury accepted it and, on 20
October 1999,
after a five day trial at the High Court in Edinburgh, found the appellant guilty of a
charge libelling that:
"on
[Sunday and Monday] 29 and 30 November 1998 at 1 Easter Dalmeny Cottages,
Dalmeny, Edinburgh, you did assault [S O M or S], your wife, then residing
there...seize hold of her, threaten her, push her into a bedroom, push her onto a
bed, forcibly remove her clothing, repeatedly punch and butt her on the head,
force her legs apart, apply petroleum jelly to her hinder parts, attempt to
penetrate her hinder parts with your private member, and did rape her".
The appellant had instructed Mr Vincent Belmonte, a solicitor
very experienced in criminal defence work, to act on his behalf. On or before 6 October
1999, Mr
Belmonte instructed Scott Brady, Advocate, to conduct the defence at the trial.
At that time, Mr Brady was junior counsel, skilled and also very
experienced in criminal cases. A
consultation with the appellant was held on that date and another one took
place on 13 October, prior to the commencement of the trial.
(b) The Complainer's Testimony
[2] In a report
submitted in the context of the appellant's initial appeal, the trial judge
narrates that, central to proof of the charge, was the evidence of the
complainer. She had been in what had
become an unhappy and acrimonious marriage with the appellant. They had moved from London to Dalmeny, where they lived with
their two children. The complainer
continued to work in the field of accountancy in London, travelling to Dalmeny at weekends. The appellant had been unemployed for some
time. The trial judge's report
continues:
"The complainer stated that the
appellant had been aggressive and unpleasant to her during the course of the
weekend, making threats and using abusive language... During the latter part of Sunday 29 November
1998, the appellant had gone
out to spend time at the Anchor Inn, a public house in South Queensferry. He had left
the house between 8.00 p.m. and 9.00 p.m....
...the appellant had returned home
around midnight...very angry and very drunk. He had screamed and bawled
at her. He had thrown
her onto a bed and tried to remove her clothing, verbally abusing her the
while. The complainer had been wearing jogging pants, which were tight;
the appellant could not get them down.
He had ripped her trousers off. She
had wriggled and pushed him away, but he pushed her onto a bed. He butted her on the head several times. The complainer thought that she might have
blacked out. The appellant had then torn
her underpants off, ripping them into three pieces. He had placed his thumb
into her mouth, saying, "I'm going to take your teeth out." The complainer had bitten his thumb and drawn
blood. She continued to struggle with
the appellant... He had said to her: 'Keep still, you bitch. I'm going to have
you. You're my wife.'... At this stage, the children appeared... The
appellant...desisted and put them back to bed.
Thereafter, he renewed his onslaught on the complainer. She said that he had removed her sweater and
possibly her bra. He had taken his own
clothes off down to his underpants. He
said that he was going to carry out an 'anal rape', saying: 'I am going to have
you where no-one else has.' Thereupon
the appellant had obtained a pot of Vaseline in order to facilitate this
enterprise. At this stage, the
complainer had run into the bathroom, to which the children had also come. However, the appellant had put them back to
bed again. Thereafter he had dragged the complainer into the bedroom. He had proceeded to make use of the Vaseline
to facilitate anal intercourse, which he attempted more than once, but
failed. After that, the appellant had
pushed her down and had penetrated her forcibly in the vagina. After the
completion of this rape, the complainer explained that she had run into the
children's room...".
The complainer spoke to a further incident in the morning and
described herself being "petrified and numb", before she arose with the
intention of driving the children to school as usual. However, at about 8.35 am, she decided that she had to
leave. She packed some belongings and
left with the children, intending to go to a Women's Refuge, which she knew
about, in Carlisle.
She stopped at the Cairn Lodge Services in Douglas, Lanarkshire, where
she spoke to the staff. As a result, the
police were summoned and she was taken to Law Hospital.
(c) Corroboration etc.
[3] The two
children (aged only 8 and 9) gave evidence.
The older one spoke to the appellant returning from the pub and being
awoken by a disturbance involving his parents later on.
[4] Two employees
from Cairn Lodge Services spoke to the complainer being in a state of distress;
crying and shaking and saying that she had been "beaten up" by the appellant. Both noticed injuries on her neck and face.
[5] The Accident
and Emergency doctor at Law Hospital spoke to seeing the complainer, who
was complaining of rape, at about 2.15 pm.
She noted a large contusion on the complainer's forehead, which was
tender. There was recent (within 24
hours) bruising on the nose, the left cheek and thigh. There was grazing on the left side of the
face and neck, left chest and the back of both wrists. There was a soft tissue injury to the mouth.
[6] Dr Jill
Murie, a general medical practitioner and police surgeon practising in Lanark,
examined the complainer between 5 and 6 pm.
She completed a pro forma
examination form, which was produced at the trial. According to the report from the trial judge,
she spoke to there being severe bruising to the forehead and face, including
two black eyes. There was a bruise
on the chin and scratches on the neck.
There were numerous bruises on her body, some fresh but others two to
three days old. There was fresh
"fingertip" bruising on the inner aspect of the right upper arm and defensive
injuries to the backs of both wrists.
There was extensive bruising on the inner right thigh (shown in
photographs also produced), a bruise on the right knee and "fingertip" bruising
on the left calf. Dr Murie did not
consider that these could have been caused accidentally or by self
infliction. On examining the
complainer's genital area, Dr Murie found congealed pubic hair and tenderness
of the vaginal orifice and between the vagina and anus. There was considerable tenderness at the back
of the anus, which, she testified, was unusual. Dr Murie said that she had not seen a
parous female with such tenderness and that her findings were consistent with
attempted anal penetration and non-consensual vaginal intercourse.
[7] During the
course of the appeal, reference was made to the transcript of Dr Murie's
testimony. She had said in
examination-in-chief that the first and most obvious feature of her findings
was severe bruising to the head and face.
She described the bruising to the inner aspect of the right upper arm as
"fresh fingertip bruising... characteristic of a restraint" (p 318). She described the wrist bruising in similar
terms. The appellant did not dispute
that he had restrained the complainer (infra).
This, in due course, would be his
explanation for these injuries. Dr Murie
described fresh "fingertip" bruises on the inner right thigh, also caused
either by prolonged or altered restraint.
The appellant would have an explanation for these too (infra). Dr Murie spoke to "exquisitely" tender areas,
which she found at the back of the anus.
When it came to cross-examination on tenderness, Mr Brady's line was
that doctors detected tenderness as a result of what their patients told
them. He put it to Dr Murie, in that
regard, that doctors relied on their patients being
truthful. But Dr Murie denied this. She relied on experience. Mr Brady shied away from that line. He changed tack and put certain parts of a
single page of the medical notes of the complainer's general medical
practitioner (infra) to Dr Murie
relative to vaginal discharge. This was,
it seems, with a view to hinting to the jury that the redness of the vaginal
area, which had been noticed by Dr Murie, might have been caused by some
form of inflammation caused by the discharge.
[8] The police
recovered a pair of ladies underpants, which were ripped in two pieces, from
the house (Joint Minute para 3). They
also found a container of Vaseline in the bedroom. Although not mentioned by the trial judge in
his report, an anal swab taken from the complainer disclosed the presence of Vaseline
(Joint Minute para 5).
(d) The Appellant's Account
[9] The appellant
gave evidence to the effect that he had gone to the pub. On his return home, he had gone to bed. He had been woken by the complainer bearing
bottles of Tia Maria and Coca Cola, with two glasses. After sundry communings, the complainer had
initiated sexual activity and intercourse took place. At between 2 and 3 am, he had been woken again by the
complainer, who was biting his thumb in a painful manner. The complainer assaulted him and he had to
restrain her by lying on top of her. The
children had come in and he had returned them to bed. He went back to bed and to sleep, matters
having calmed down. He denied using the
Vaseline, tearing the complainer's underwear or attempting to have anal
intercourse with her. He maintained that
he had noticed the bruising on her thigh on the Saturday, but could not offer
an explanation for that on the complainer's forehead. Sundry character witnesses were led on the
appellant's behalf.
(e) The Charge
[10] The judge's
charge was relatively standard in content.
The trial took place before the recent innovations into the definition
of rape. The trial judge defined rape
as:
"sexual intercourse of a woman by a male person, forcibly and
against her will, her resistance having been overcome...If resistance is offered
it must be shown that it was persisted in until overcome by force, or fear, or
exhaustion, or a combination of these things".
On evidence of distress, he said (p 22):
"...if
evidence is led of distress on the part of the complainer, but led from other
witnesses, it is recognised that it does in fact provide independent evidence
to corroborate the evidence of a complainer to the effect that she was not a
consenting party to any sexual activity involved. Now, accordingly then, the distressed or
shocked state of a complainer after an alleged assault is capable of
corroborating her evidence that she was assaulted and was not a consenting
party".
He went on to stress distress
as being potentially corroborative of lack of consent.
(f) The Appeal
[11] The appellant
was sentenced to four years imprisonment.
He appealed against his conviction upon grounds quite different from the
points raised in the reference. He was
refused leave at first sift (10 March 2000) and at second sift (5
May 2000). The appellant has served his sentence.
The Reference
(a) General
[12] The appellant
applied to the Scottish Criminal Cases Review Commission, who completed their
reference to the Court in March 2003. The Commission noted that the appellant's
basic position was that his wife had lied at the trial, being motivated by: a
desire to secure the matrimonial property; her wish for custody of the
children; and her affair with another man. The proposition seemed to be that the
complainer had entirely fabricated the account of the rape, falsely created the
evidence of distress, largely caused the physical injuries herself and planted
the Vaseline and the torn underwear. The
Commission rejected some of the appellant's more extreme and bizarre
complaints. These included his
contention that his children should not have been permitted to give their
testimony by CCTV link, as distinct from appearing in court, despite their ages.
There were also complaints about supposed
false statements made by the complainer about the timing of the appellant's
redundancy from British Telecom in 1994 and concerning the appellant being an
alcoholic. It transpired that the
complainer's evidence about his redundancy had been accurate and that she had
not said that he was an alcoholic.
[13] The Commission
looked into the allegation that the complainer had had an affair. The appellant's contention was that her mobile
telephone records would demonstrate this. However, the defence had precognosced the
alleged paramour and his wife. Their
position was that it had been the appellant, who had been telephoning and
making threatening and abusive remarks, and not the complainer. Not surprisingly, therefore, the defence had
not used the telephone records in an effort to demonstrate the existence of an
affair, for what relevance that might have had in any event.
[14] Next there was
the appellant's contention that a taxi driver would have confirmed that he had
arrived home at 10 pm. The defence
precognition of the taxi driver indicated that the taxi driver would not have
done so. Finally, on the rejected
complaints, the appellant maintained that, prior to trial,
the appellant had thought that Mr Belmonte was to have represented him
personally, rather than instructing counsel.
He claimed that he had only had one five minute consultation with
counsel prior to trial. This proved to
be untrue. He had two consultations and
the file notes recorded them as lasting, on average, two hours each.
[15] From the above
narrative and findings, it was presumably apparent to the Commission that the
appellant was someone whose word might not always be regarded as entirely
truthful or reliable.
(b) The Bank Pay-In Book
[16] The appellant
alleged that the complainer had lied to the Court when she was asked about
whether she had ever had an account with Barclays Bank. She had denied having such an account in her
name, but did say that the appellant had such an account. The transcript of the trial, which the Commission
obtained (but which was not produced to the court) confirmed that the
complainer had said this. The appellant
maintained to the Commission that this line of questioning had been relevant to
whether the complainer had made up the allegations for a financial motive. The Commission were supplied with papers,
which had been held by Mr Belmonte.
These included, according to the Commission, a photocopy of the front
page of a pay-in book for Barclays account no. 07307 20883863 in the name of
Mrs [SOS]. In a letter to the appellant
after the trial, Mr Belmonte advised the
appellant that the original had been returned to him with counsel's
papers.
[17] The
Commission's assessment recognised that it was important to consider whether
the existence of the pay-in book was significant. Their approach was to determine:
"whether counsel's failure to lead evidence of the pay-in
book or to put it to the complainer in cross-examination constituted a failure
to put the defence case fully before the court...".
The Commission reached the view that the existence of the
book "undermined" the position of the complainer that she had never held such
an account and that its production "might have affected her credibility and
reliability in the eyes of the jury". Therefore,
what the Commission characterised as a failure by counsel "constituted a
failure to put the defence case fully before the court" (para 93). The failure to raise this failure by the
appellant's legal team (presumably Mr Belmonte) as a ground of appeal
compounded matters (para 99).
(c) Medical Opinion
[18] According to
the Commission, the appellant complained that his legal advisers ought to have
"obtained a separate opinion from an independent expert to verify the accuracy
of Dr Murie's evidence". There was
no typewritten report from Dr Murie; only the handwritten pro forma already referred to. That was normal for the area of Dr Murie's
practice at the time. However, the
defence had precognosced Dr Murie twice.
From the first of these precognitions (neither was produced to the
Court), the Commission extract the following:
"...the
injuries to the perineum...were caused in my opinion outwith the range of normal
consensual activity and indicative of forced penetration".
In the second, they select the
following:
"As
I have said there was deep bruising of the perineum, the area between the
vagina and anus, which is indicative of forced penetration of the vagina and
the anus. She complained of a sore anus. After normal sexual activity there is sometime
redness in that area which is caused by friction but not such deep
bruising. I completed a body map noting
that her injuries (sic) and concluded
that her injuries are consistent with her allegations".
The Commission did not assess the appellant's complaint from
the standpoint of a defence lawyer.
Rather they instructed an "opinion" from Dr David Cochran, who
was then a Forensic Medical Examiner (formerly "police surgeon"). What Dr Cochran was asked for his opinion
about is not stated either in the reference or in his report (his letter of
instruction dated 18 July 2002 was not produced). He was supplied not only with material which
one might expect a defence expert to have been provided with (e.g. the
photographs and Dr Murie's pro forma),
but also with transcripts of the evidence of the complainer, the appellant and
Dr Murie. He was given a photocopy
of the single page of the complainer's GP records, noted above as being used at
the trial, covering the months August and October 1998.
[19] The substantive
parts of Dr Cochran's report consist of a commentary on the testimony of
Dr Murie. It commences by stating that
"There
are significant, verging on irreconcilable, differences between the
hand-written notes taken by Dr Murie...and the subsequent type written
statement produced by Dr Murie and the oral evidence given in court".
It is not known what this type-written statement was and Dr Cochran
does not mention it on the list of documents he said that he received. It may have been one of the defence
precognitions, since there was no such statement produced by Dr Murie. Be that as it may, Dr Cochran goes on to
quibble with Dr Murie's use of the adjective "exquisite", when applied to
what he refers to as the complainer's vaginal tenderness. He states that there was no record of an
injury, which might have explained such a degree of tenderness. He states that Dr Murie's testimony of
an injury to "the perineal body is untenable in the absence of an obvious
external injury". He says that there was
"No physical sign...present in the perianal area to explain the tenderness
detected". In relation to the extensive
bruising which had undoubtedly been found on various parts of the complainer's
head, limbs and body, Dr Cochran writes:
"This
entire evidence is negated since it is clear that Dr Jill Murie was
unaware of the fact that [SOS] had complained of 'spontaneous bruising' to her
general practitioner on 10 August 1998".
Dr Cochran quibbles once more about Dr Murie's
language, this time her description of "raccoon eyes" before expressing an
opinion that:
"Dr Murie is not entitled to opine that intercourse had
been non-consensual. There is no
documented injury to either vagina or anus, the tenderness or exquisite
tenderness present is clearly a subjective symptom conveyed by the patient to
the doctor and is in the absence of documented injury unsubstantiated.
Causation
of the bruises with the knowledge that [SOS] complained of spontaneous bruising
to her General Practitioner is impossible to determine".
The Commission conclude:
"109.
...Dr Cochran's report clearly contradicts Dr Murie's evidence with
regard to her interpretation of the injuries which she identified on the
complainer. In particular Dr Cochran
suggests that there were no objective signs of injury to the complainer's
vaginal or anal area upon which to base an opinion that the intercourse was
non-consensual. Furthermore, he states
that the existence of an entry in the complainer's general medical notes suggesting
that she had previously experienced spontaneous bruising,
undermines any interpretation by Dr Murie of the bruising that she found
on the complainer. It is noted that Dr Murie
was not referred, by either the advocate depute or defence counsel, to the
entry in the complainer's general medical notes which recorded this complaint
of spontaneous bruising.
110. ...the Commission is
persuaded that, if the applicant's legal advisers had sought an independent
opinion in respect of the medical evidence, from either Dr Cochran or from
another expert witness in this field, the defence could have presented a
substantial challenge to Dr Murie's evidence".
The Commission state that they had regard to four cases: Anderson v
HM Advocate (infra); Garrow v HM Advocate (infra); Hemphill v HM Advocate (infra); and E v
HM Advocate (infra). The basis of the referral (para 122) is
that the appellant:
"...may
have suffered a miscarriage of justice as a consequence of the failure of his
legal advisers properly to prepare and present his defence in accordance with his
instructions in respect of three issues".
The three issues are: (1) the failure to use the bank
book at the trial; (2) the failure to use that failure as a ground of appeal;
and (3) the failure to obtain an independent medical report. Based on that, the Commission state that they
believe that there may have been a miscarriage of justice and that it is in the
interests of justice that the case be referred.
Responses from Counsel and Agents
[20] It is an
interesting feature of the reference that the Commission report that they
interviewed Mr Brady and Mr Belmonte, as well as Ms Hilary Jones,
who was Mr Belmonte's colleague who attended the trial diet. This was presumably in connection with the
failures which the Commission considered they, or one
or other of them, had been responsible for.
Nothing is said about the explanations they put forward on the matters
ultimately referred by the Commission and there is no analysis of any comments,
which they may have made, in the context of a defective representation
appeal.
(a) Pay-In Book
[21] What is noted
in connection with the pay-in book is as follows:
"88. Mr Belmonte...told
the Commission that he had been aware of the existence of the pay-in book and
its relevance to the applicant's defence. He advised also that while he had been
involved in the preparation of the applicant's case for trial, he had not been
present at the trial, but that Ms Jones had been present. Mr Belmonte expressed surprise that
counsel had not lodged the pay-in book as a defence production or referred to
it in the course of cross-examining the witness.
89.
Mr Brady...told the Commission that
he was aware that there may have been a pay in book suggesting that the
complainer had a Barclays bank account in her own name. However, Mr Brady said that he did not
believe he had actually ever seen the book in question, and was not certain
that it actually existed".
[22] The Court
requested responses (infra) from Mr Brady
and Mr Belmonte. Mr Brady responded
by Note dated 12 July 2003. In respect of the pay-in book he reports:
"...I have no specific recollection of
seeing a bank account book from Barclay's.
I do not, of course, dispute that it exists. However, I should be very surprised if it had
been in my brief as appears to be the suggestion and, if it had been, that it
should have remained there very long. It
is my practice not to hold on to original documents, rather, to allow
solicitors custody of these.
...the documentary productions were
late in this case and it is not clear to me when it is that the applicant says
he handed the passbook to his solicitors.
It appears that Mr Belmonte was aware of the book and its
relevance, yet it had not been lodged as a production. I fully accept that the decision rests with
counsel as to whether or not items are lodged, but I have no recollection that
any discussion as to its lodging took place.
I do, however, have a note that at consultation the applicant's and complainer's financial circumstances were discussed. The applicant indicated that on the morning
of the alleged rape, he had gone to the Clydesdale bank cash point and when he
had tried to check the balance or draw money his card had been "swallowed" by
the machine. He had also had a look in
the Barclay's account and there was nothing in it. This was, I took it, because the complainer
had removed the money. I assumed these
were joint accounts. As I understood it,
the applicant's position at consultation was that the complainer had made the
false rape allegation so that inter alia
she could make off with the parties' money.
I cannot now recall whether there was evidence to substantiate that the
two had had joint accounts or whether, and if so, when and by whom, the
accounts had been emptied.
I do have a further separate note taken at the
consultation to the effect that the complainer had two of her own accounts,
namely one with the National Westminster and one with Barclay's. I must say that the relevance of the defence
of her having accounts in her own name is not, even now, apparent to me. If I had been asked to consider whether the
book should be lodged, I think it likely I would have counselled against,
especially as the applicant might have been asked to explain how it was that he
had possession of his wife's own account book (assuming that it had, indeed,
come from him) when his line was that she made off with the money and, in his
evidence generally, that his wife controlled the family finances and business
affairs.
I cannot now say that I specifically remember
deliberately being cautious about how far I pushed the line of questioning...but
with hindsight, I can quite see that I might have thought that the production
of the book, might have raised more questions than it
answered, even if I had been aware that it was to hand.
As I find it difficult to see the relevance of the
existence of the book to the defence, I find it difficult to see a reason for
the complainer lying about its existence. Although it seems unlikely, I would have to
have had in contemplation that her denials might have been merely erroneous
rather than dishonest".
Mr Belmonte responded by
letter of 20 November 2003 as follows:
"1 ...It is confirmed that the
Appellant instructed us that his wife had opened a bank account with Barclay's
Bank. Information to that effect was given to...[Mr]
Brady...for his use in cross examining the complainer and was left in his hands
to present appropriately".
(b) Medical Evidence
[23] In relation to
the medical evidence, Mr Brady states:
"I have no recollection of noting
that Mrs [SOS] had complained of 'spontaneous bruising' to her General
Practitioner on 10 August 1998 and, I must say, that if I had noted it at
the time I am not at all sure that the significance would have struck me given
that the evidence appeared to be, from both sides, that there had been episodes
of violence in the marriage (one is aware of examples in violent domestic
situation lying to close friends, family and even doctors about how they come
by injuries).
...I am not sure if Dr Cochran is
saying that even without the results of the tests he is of the opinion that the
bruising and injuries...could be spontaneous...If so, I must immediately concede
that it did not occur to me that this could be so and, if it had, I think it
highly likely I would, have requested a medical opinion on the matter
...the applicant, as I saw it, had a
real problem with these [non vaginal] injuries coinciding with the very day on
which the complainer decided to leave him.
I am not sure that these difficulties would have been surmounted even if
it were established that she was subject to spontaneous bruising. Such a finding might have raised further
questions (e.g. was she able to predict such attacks so that she could choose
that particular day to leave and "fabricate" evidence, namely the damaged pants
found at the locus knowing that she would also have bruising?).
There was evidence...that there had
been previous occasions when [the appellant's mother or father] had seen the
complainer deliberately trying to injure herself (striking her head on the
fridge) and a suggestion that she had deliberately caused her injuries was,
therefore, before the jury, but the possibility of the injuries being
spontaneous was not explored before the jury.
So far as Dr Cochran's opinion
as to Dr Murie's evidence about the nature of the vaginal injuries is
concerned, I put to her very firmly in cross-examination that her findings must
depend on subjective evidence, namely that of the complainer herself. Indeed, I reminded the Jury of that in my
address. ...Dr Murie was reluctant to accept this...and it was not until she
was giving evidence...that it became apparent...that it was something upon which
she would express a fairly fixed, possibly even trenchant, opinion. The extracts from her precognitions...did not
alert me to the fact that she would be reluctant to accept in her evidence in
court what seemed to me a matter of logic...rather than medical opinion namely,
that her findings as to the pain and tenderness in the area depended on the
veracity of what the complainer had told her.
...As I considered the medical
evidence in advance of trial, the danger for the applicant seemed to me to lie
more in the bruising and injuries to the other parts of the body..."
Mr Belmonte writes:
"b Doctor Jill Murie was precognosced by us
prior to the instructions of [Mr] Brady...at consultation...consideration of
all the Crown evidence was effected...We were not advised that a defence expert
to counter Doctor Murie's evidence should be instructed and led".
The Grounds of Appeal
and Procedure
[24] The referral
is dated March 2003. Its first airing
was at a Procedural Hearing on 14 May 2003, when grounds of appeal were
ordered within six weeks and reports sought on the referral from the trial
judge, counsel and agents. Grounds of Appeal were lodged on 14 July and
remained essentially unchanged in the years which followed. These are:
"1. The evidence of the
complainer was central to the Crown case.
a)
...Had the evidence of the pay-in book been presented it is likely to have had a
material bearing on [the jury's assessment of the complainer's credibility and
reliability]";
b) "Had [Dr Cochran] given evidence it is
likely that his opinion would have had a material bearing on the jury's
assessment of the complainer's account...
By
reason of the failures referred to the appellant's defence was not properly
presented and as a consequence he was denied a fair trial.
Separatim. The evidence referred
to was not heard at the trial. Had it been heard it would have been likely to
have had a material bearing on the jury's verdict.
Esto
the failures referred to do not amount to defective representation there is a
reasonable explanation for why the evidence was not heard.
2.
The trial judge misdirected the jury on
the approach which they should take on the evidence of distress...The directions
were apt to suggest that one of the uses the jury could make of the evidence of
distress was to corroborate the fact that the complainer had been assaulted.
Accordingly
there has been a miscarriage of justice".
There was another Procedural Hearing on 14 November
2003, by
which time, it would appear, no response from Mr Belmonte
had been forthcoming to a letter sent to him on 21 May. It was anticipated too that counsel would
have revised the grounds of appeal by the next Hearing, which was on 18 December. That Hearing was continued "with a view to
the Court being advised as to the up to date position in regard to ground of
appeal (b)"; revised grounds having been lodged at the Bar only on that date. On 13 February 2004, counsel advised yet another
Procedural Hearing that the appeal was not ready to proceed as:
"the medical records of the complainer had not yet been
retrieved. Further it was stated that Dr Cochrane
would require to study said records and the crown would thereafter have to
decide whether or not they wished their expert to also examine the records".
Entering its second year of procedure, a Hearing of 30 March
2004 was
continued to 2 April and again until 30 April and then 11 June,
with no reasons for these being minuted.
On the last date, it was recorded that a further delay was required
pending:
"(a) the consideration and prosecution of
further steps in relation to the bank account operated by the complainer with
Barclay's Bank...and (b) simultaneous steps to be taken by the Crown to secure
the production of the medical records of the complainer as produced at the
trial".
On 9 July 2004 the Crown were ordained to deliver
to the defence copies of the complainer's bank records. But it was noted on that date that the appeal
was ready to proceed. An unusual feature
of that diet was that the counsel generally instructed in the case did not
appear and a solicitor advocate represented the appellant. Several months later, on 8 December, the
Court was to hear that the appeal was not ready to proceed, apparently because
the medical records had not been recovered. Consideration was being given to the lodging
of a petition for a Commission and Diligence to recover them (although the need
to create a separate process was not explained). A month later on 18 January,
2005 the
court was advised that such a petition was necessary (but obviously had not
been presented), thus necessitating a further Hearing. On 23 March the Court was told that a
petition would "shortly be lodged" and therefore assigned another Hearing. That took place on 2 August, when the
court was told that the appeal was still not ready to proceed because the
medical records had just been recovered and they now needed to be examined by
an expert on the appellant's behalf. The
reader of the minutes may be surprised that it had thus, apparently, taken the
appellant eighteen months to recover a set of medical records. However, tragically, that is not the case.
[25] The appeal
had, of course, passed its second anniversary with no substantive hearing
fixed; indeed no obvious progress at all.
On 6 October, it was minuted that "counsel is yet to confirm what
has been done" with the medical records.
Curiously, over six months later, on 26 April 2006 it was said that
a petition to recover the medical records had been determined only the previous
month and that further time was required to recover the records and for them to
be examined by an expert. On 8 June
2006 it was
recorded yet again that the case was not ready to proceed "due to the fact that
the medical records of the complainer have still not been recovered because of
a difficulty in relation to the interlocutor of the court granting authority
for their recovery". On 4 August it
was said that "whilst certain recoveries had been obtained it was now felt that
it may be necessary to lodge a further petition to secure other recoveries". Over a month later, on 15 September, it
was said that a further petition for recovery "is to be lodged". On 12 January 2007, it was still being said that the
appeal was not ready to proceed "due to...a fresh Petition for Recovery of
Documents" being lodged. This petition
appears to have called on 30 January, but was continued until 6 February
and then 15 February. Meantime, on
14 February the Court minute reads that the appeal was not ready because
the petition for recovery of the medical records was still to be determined.
[26] The petition
was determined on 15 February 2007, when an order for recovery of the
complainer's GP medical records was made.
As the appeal crawled past its third anniversary of Procedural Hearings,
it was withdrawn from one on 5 April because "the medical records have not
yet been sent to the Commissioner". It
was withdrawn from another on 23 May because "the Commissioner has yet to
complete her excerpting of the medical records". The next Hearing was scheduled for 12 July,
but it was withdrawn from that because "the commissioner is still awaiting
medical records". The case called at a Procedural
Hearing on 23 August when counsel advised the court that the appellant's
agents had not been able to effect service of the order for recovery because
they did not know the name of the complainer's (presumably then current)
GP. On 12 October, the case called
again, when it was said that all relevant material had now been recovered and
was going to be made available to Dr Cochran, who was described as the
appellant's expert. The case was
withdrawn from a further Hearing on 28 November because "the medical
expert requires to consider the records". It was withdrawn from another on 29 January
2008 because
"there had been problems between the Edinburgh agents and local agents with regard
to the medical records and that an expert's report was to be lodged in respect
of the issue of fresh evidence". The
case called on 4 March 2008, when it was revealed that agents
"had encountered problems in instructing Dr Cochrane. They had written twice, however, discovered
only last week that he has moved practice. He was now in possession of the relevant
records..."
[27] The case
limped forward to its fourth anniversary of Procedural Hearings by calling on 1 April,
when the court was advised that the report from Dr Cochran was "not yet
available". Eventually, on 9 May
2008 it was
announced that Dr Cochran's report was available. A diet for the substantive hearing was
assigned, hence its calling before this court on 2 and 3 September
2008, almost
ten years after the incident had occurred.
The delays in the progress of the appeal might have shocked the court,
had it not been for it having ploughed through a similar procedural history two weeks
previously in the appeal of McCarthy v HM
Advocate. It is thus with a degree
of resignation that it bears noting that no medical records were used at the
appeal hearing, other than the single page which had been used at the trial and
had been sent to Dr Cochran by the Commission. The appeal, as it was eventually presented to
the court in September 2008, could have been advanced in substantially similar
terms, at least four years earlier.
The intervening procedural steps appear to have been a waste of time and
resources.
Further Enquiries
(a)
Pay-In Book
[28] A photocopy of
the front of a Barclays Bank pay-in book, and of one of the slips, was made
available for the appeal hearing. This
bears the name Mrs [SOS] and an address in Barnet, Hertfordshire. It has the account number 20883883 and a
Barnet branch number 20-04-41.
As a result of defence investigations, a further Barclays Bank pay-in
book was found sometime in or before May 2004.
This also bears the name "Mrs [SOS]" with the same Barnet
address. This time it has the number
90883883 and a Whetstone & Finchley branch number 20-95-61. There is one pay-in recorded in the
counterfoils, dated 31 October 1994.
Enquiries of Barclays revealed, in June 2004, that the first account
number was changed to the second number in February 1994, presumably because of
a branch merger. Thereafter, the account
was operated until 7 December 1994, when it was closed. The Crown having asked the complainer about
this account, she maintains that she does not recall it but considers that it
may have been operated by the appellant.
At all events it had ceased to exist almost four years before the
alleged rape.
(b) Medical
[29] Dr Cochran
analysed some thirty five pages of the complainer's medical records. He noted an anal fissure in 1990 and a
gynaecological assessment in 1987, when the complainer was complaining of pain
during intercourse. He repeated the
reference to "spontaneous bruising", which is contained in an entry on the
single page of GP records for 10 August 1998. The records reveal that subsequent blood tests
taken in that regard produced normal results. Dr Cochran reported in May 2008 that the
1990 anal fissure was "highly relevant", although he does not state why that should
be so.
[30] Dr Murie
was asked to respond to Dr Cochran's initial and supplementary
reports. She maintained that her use of
"exquisite" to describe the complainer's pain was accurate and her use of
"raccoon" to describe the facial bruising was intended to be of assistance to a
jury. She repeated that the "perineal
area was red and acutely tender consistent with the effects of excessive
pressure and stretching of the skin and subcutaneous tissue". She explained that she had not made any
mention of an injury to the underlying perineal body. She noted the part of the GP entry of 10 August
as "c/o (complaining of) postural hypotension and spont. bruising
on legs". She explained that patients do
not complain of either. Rather this is
the GP's interpretation of the symptoms.
Dr Murie rehearsed the full GP entry, which is:
"Stressed tired & can't take any
more.
Felt
suicidal last week & realised she need help.
Also c/o postural hypotension & spont. bruising on legs".
This is followed by an entry
on 5
October 1998:
"Victim of
repeated assaults by husband who has a serious alcohol problem. Assaults
started 3/12 ago".
The entry goes on to detail a particular assault. As Dr Murie, not surprisingly, observes:
"A prudent GP on reflection may have deduced from these presentations that they
were related and indicative of physical abuse".
Dr Murie states that the anal fissure in 1990 is irrelevant to the
complainer's tenderness in 1998. She
reports that, had the further information provided by the medical records been
available to her at the time of the trial, her conclusions would have been the
same. She describes Dr Cochran's
contribution to the review of the evidence as "unhelpful".
The Trial Judge's Supplementary Report
[31] In a
supplementary report, dated 5 August 2003, commenting upon the terms of the
Reference, the trial judge elected to provide his own views upon the
complainer. He states that he did not
form a favourable impression of her as a witness. He continues:
"Having
listened to her giving evidence over a considerable period of time, I formed
the view that she was garrulous, somewhat self-indulgent and lacking common
sense. However, I would readily agree
that the experience of giving evidence was, from time to time, plainly
distressing for her. At one point during
the course of her evidence, when she was asked to identify certain items of
clothing belong[ing] to herself, she collapsed in tears. It was then necessary for the proceedings to
be adjourned for a period of time, to enable her to compose herself. However, as her evidence continued, in
particular her cross-examination, she conveyed the impression to me that, in
giving evidence about her husband and her life with him, she held a vicious,
vindictive and sarcastic attitude".
In
relation to bank accounts, the trial judge comments:
"...the
complainer was in fact cross-examined very extensively relating to her
financial affairs and, in particular, to bank accounts which may have been held
by her. So extensive was this
cross-examination and so far removed was its subject matter from what might be
described as the circumstances of the alleged offences themselves, that, at one
point, I asked the jury to withdraw, so that I could question counsel for the
appellant as to the purpose of the very detailed questions he was asking about
a range of matters, including those mentioned.
I was informed that the questioning in issue was pertinent to an attack
on the credibility of the complainer.
Having been assured concerning these matters, I allowed the jury to
return and the cross-examination continued".
The trial judge narrates another line of cross-examination
put on the instructions of the appellant.
This was that the rape allegation was a "monstrous lie", which had been
put into the mind of the complainer by her sister, whose own husband had been
prosecuted successfully for her rape.
The trial judge allowed this line, but it transpired that the husband
had actually been prosecuted for sexually abusing his daughter, and not raping
his wife.
Nevertheless,
the trial judge observes that, in his view:
"had the appellant been able to demonstrate by reference to
bank documentation that the complainer had been untruthful in her evidence
concerning a bank account, that would have been a very significant feature in
the defence of the appellant".
On the
medical issue, the trial judge recorded that Dr Murie's evidence
constituted a powerful element in the Crown case. He continues:
"...according
to the notes which I have, the cross-examination of Dr Murie was not
extensive. It appeared to be based
principally upon the contents of the complainer's medical records, held by her
general practitioner...It is obvious that, if medical evidence from some other
source had been available, which might have contradicted the evidence of Dr Murie,
that would have been a very material feature of the appellant's defence".
Submissions
(a) Appellant
[32] The appellant
submitted that the appellant had not received a fair trial, having regard to
the significance of the pay-in book and Dr Cochran's evidence. He founded upon the trial judge's remarks in
the supplementary report regarding that significance. In relation to the bank account, its
importance was as a support to the appellant's position that the complainer had
set up a separate bank account to enable her to leave the appellant. The production of the pay-in book would have
resulted in the complainer being caught out in a lie. Preparation ought to have revealed that the
complainer would not speak the truth about this. Even if counsel had not anticipated that the
complainer would lie about the bank account, and hence had not lodged it in
advance of the trial, he could have produced it in the course of
cross-examination. Having asked about
the account, counsel ought to have followed this line through.
[33] The appellant
had an over-riding right to a fair trial and this meant his defence required to
be "presented to the court" (Anderson v HM Advocate 1996 JC 29; SCCR 114, Lord
Justice General (Hope) (delivering the Opinion of the Court which overruled McCarroll v HM Advocate 1949 JC 10) at p 33. The failure to cross-examine had the same
effect as a ruling that evidence was inadmissible, as had happened in Moir v HM Advocate 2007 JC 131; SCCR 159 (sub nom. M(M) v HM Advocate (No 2)). A miscarriage of justice could not be
excluded, albeit that the appellant was unable to assist in predicting what the
complainer's response to the questioning might have been. It was sufficient that the appellant's
defence had not been "properly" presented (Garrow
v HM Advocate 2000 SCCR 772, Lord Justice General (Rodger) at para [14];
Hemphill v HM Advocate 2001 SCCR 361, Lord Cameron of Lochbroom (delivering
the Opinion of the Court) at para [20]; cf AJE
v HM Advocate 2002 JC 215, SCCR
341, Lord Justice-Clerk (Gill) at paras [8] and [18], Lord Hamilton at paras
[3] and [15], Lord McCluskey at paras [19], [22] and [27]). The emphasis was on "proper" presentation,
despite judicial doubt having been cast on the use of that wording in these
cases (Jeffrey v HM Advocate 2002 SCCR 822, Lord Justice General (Cullen) at paras
[23] - [27], Lord Hamilton at para [3], Lord Kingarth at paras [4] - [6]). The remarks in Grant v HM Advocate 2006 JC 205, SCCR 365 (Lord Justice-Clerk
(Gill) at para [21]) were not in point as they concerned the adequacy of
grounds of appeal (see also McBrearty v HM Advocate 2004 JC 122, SCCR 337, Lord
Justice-Clerk (Gill) at paras [34] - [36]).
[34] In relation to
the medical evidence, the review by Dr Cochran was an example of what
might have been done by the defence. It
was not possible to say when a report ought to have been instructed or by whom.
Counsel had not anticipated the
difficulties which had ensued as a result of Dr Murie's evidence. If the issue of spontaneous bruising had been
raised, it would have been easier to persuade the jury that the account of rape
was a "hoax". Any counsel faced with the
precognitions of Dr Murie would have advised the instruction of a report
to see if there was an alternative explanation for the injuries. That was "obviously" what needed to be done
and it would have made all the difference. It was "obvious" too that, if Dr Cochran
had been asked to report, he would have raised the matter of spontaneous
bruising. He could also have dealt with
the subjective nature of the tenderness. His report would have given counsel a platform
upon which to challenge Dr Murie's testimony. Alternatively, Dr Cochran's evidence
could be treated as "fresh".
[35] The final, and
short, submission was that the trial judge had misdirected the jury on the
effect of distress, in that it could not have corroborated what had happened as
distinct from whether it had been with consent (Smith v Lees 1997 JC 73;
SCCR 139). This was, of course, not a
ground upon which the Commission had elected to refer the case.
(b) Respondent
[36] Under
reference to Ditta v HM Advocate 2002 SCCR 891 (Lord Justice-Clerk
(Gill) at paras [15] - [17], the Advocate Depute stressed the narrow limits set
by Anderson v HM Advocate (supra),
having regard to the need for both the independence of counsel and
finality. The appellant's defence, which
required to be presented, had been that this was a pre-planned conspiracy by a
scheming complainer. The existence of
the pay-in book, in that respect, was of no relevance to the live issues in the
trial. Had the Commission obtained the
evidence about the operation of the bank account, it could not have been said
that a miscarriage of justice could have occurred because it was not used at
the trial. Counsel had a wide discretion
in determining his lines of cross-examination. The strictures in Grant v HM Advocate (supra) concerning the scope of appeals
based upon defective representation ought to be applied by the Commission, when
deciding whether a referral should be made.
[37] If it was
being maintained that an expert report could have been obtained, it was still
necessary for the appellant to demonstrate what that report would have shown (Lindsay v HM Advocate 2008 SCCR 391, Lord Wheatley delivering the Opinion of
the Court at para [19]). Counsel had
determined that the best way of dealing with Dr Murie's evidence of
tenderness was by cross-examination on the basis that it was a subjective
assessment. His main concern had been
the injuries to the head, face and body rather than the vaginal or anal
tenderness. It was reasonable not to
instruct an expert report. Dr Cochran's
offer of spontaneous bruising as an explanation was speculative in nature. He did not attempt to tie the actual injuries
to that condition. Furthermore,
spontaneous bruising did not explain the associated abrasions and scratches. It was difficult to see how, if the complainer
had suffered from spontaneous bruising, the bruises all happened at once and
were consistent with the defence case of fabrication.
[38] On the short
second ground, the trial judge had made it plain that distress was to
corroborate lack of consent.
Decision
(a) The Test
[39] The Full Bench
decision in Anderson v HM Advocate (supra) established that, as part of the general right to a fair
trial, an accused person has a right to have his defence presented to the court
(Lord Justice General (Hope) at p 33).
If it is not, he can appeal on the basis that a miscarriage of justice
has occurred. But, because of the need
to attain finality in any criminal process, an appellant will be unable to
demonstrate that such a miscarriage has occurred, if his only complaint is that
his defence could have been conducted differently. As it was sharply put in that case (p 36):
"There
can be no miscarriage of justice if the advocate conducts the case within his
instructions according to his own professional judgment as to what is proper
for him to do in his client's best interests".
In that context counsel is not subject to direction from the
client as to how the defence is to be presented (p 44). The manner of that presentation is a matter
for counsel's professional judgment. It
is only where the defence is not presented that a miscarriage of justice may be
said to have occurred (p 44).
[40] After a short
interval, there was a relatively rapid development in the scope of defective
representation appeals in the years following Anderson v
HM Advocate (supra). In particular there were the three cases of Garrow, Hemphill, and AJE v HM Advocate (supra) to which the Commission said they had regard in making the
present reference. However, by the time
of that reference, there had been two further important decisions of the court,
both of which might have been considered directly relevant to the Commission's
deliberations, yet which received no mention in the reference. The first of these is Jeffrey v HM Advocate (supra). It contained two analyses of these three cases,
which merit rehearsal. First, the Lord
Justice General (Cullen) said (para [26]):
"...in
the three decisions it was held that that the system for the representation of
the appellant had broken down to such an extent that his defence was 'not
properly presented', I have some concern as to whether the use of the word
'properly' could be understood as a movement away from the principle which was
set out, and for the reasons given, in the opinion of the court in Anderson. The use of such wording might be taken to
imply that an appeal court would be not averse to entertaining criticisms of
the way in which the appellant's defence had been presented. However, in none of these cases was the
statement of principle in Anderson either doubted or expressly extended. Each of them can be explained - though with
some difficulty in the case of [AJE]
v HM Advocate - as cases in which there was in some fundamental respect
a failure to put the appellant's defence before the court and hence he was
denied a fair trial. Thus
in Garrow v HM Advocate the consequences of the advice of counsel was that the
appellant's evidence and the cross-examination of Crown witnesses lacked the
support which should have been provided by a defence expert. In Hemphill
v HM Advocate it was
observed...that
'a substantial part of the Crown's case...was never made the
subject of any investigation for the defence either by way of precognition of
the Crown pathologists or by way of a report from an independent pathologist'.
In [AJE] v HM Advocate, while the members of the court
were not in agreement on all points, they were all united in holding that there
had been a miscarriage of justice in respect that the defence had not obtained
support for the appellant by challenging the inference which was sought to be
drawn from medical evidence relating to the complainers and the evaluation of
information which they had given in the course of interviews".
Secondly, Lord Kingarth said
(para [6]):
"...I
am far from persuaded that the test described in Anderson v HM Advocate
was not, in these [three] cases, widened.
On the face of it, to say that a defence was not 'properly' presented
(and to ask...if this could have had a material bearing on the determination of
the issue by the jury) is...to apply a much broader test than that of the
accused's defence not being presented. In the last of the three cases, for example,
it is...reasonably plain that what the members of the court were, in part,
concerned to assess were strategic and tactical decisions taken by senior
counsel as to how the defence was to be presented".
[41] The second
significant decision, contained in the same volume of reports, is Ditta v HM Advocate 2002 SCCR 890. It concerned whether the defence ought
to have recovered medical records and used the entries, as they could have
done, to show that the complainer's evidence-in-chief was, at least, inaccurate
in a number of respects. The Lord
Justice-Clerk (Gill) delivering the Opinion of the Court said (para [17]):
"...this
ground of appeal is misconceived. The
criticism made of the defence solicitor relates to a decision that lay well
within the range of his professional discretion. This court will not entertain Anderson appeals where all that is suggested is that with the
benefit of hindsight and further investigation it can be seen that the defence
could have been stronger or that better judgments could have been made on
strategic and tactical matters. In this
case, all that can be said for the appellant is that the defence solicitor
failed to produce an adminicle of evidence that could have provided a response
to a line of evidence by the complainer that could not reasonably have been
foreseen. That line of evidence was on a
collateral issue and there were good reasons for not producing the records".
Thus, the Court had made it plain, even by the time of the
reference, that the law remained as it was laid down in Anderson v
HM Advocate (supra). In particular, for an appeal to succeed on this
ground, an appellant had to demonstrate a miscarriage of justice by reason of
his defence not being presented to the court.
[42] The reason for
exploring these dicta is that they
demonstrate that, in deciding to refer this case to the court, the Commission
applied the wrong test. The test is not,
as the Commission put it, whether there has been "a failure to put the defence fully before the court" (emphasis
added), whatever that might be intended to mean. The lessons of experience dictate that there
are many circumstances where it is prudent to put a defence, or a part of it,
before a judge or jury in an economic manner if the prospects of an acquittal
are to be enhanced. Mechanical or
extensive cross-examination or the exploration of minutiae seldom achieves that goal.
[43] The approach
adopted in the two cases of Jeffrey v HM Advocate (supra) and Ditta v HM Advocate (supra) has been adopted in several cases since the reference. In McBrearty v HM Advocate (supra), the
criticism was of the defence decision not to obtain an expert report on a
particular aspect of the case. The Lord
Justice-Clerk (Gill) said (para [55]):
"These
decisions were a matter for counsel's judgment.
In every judgment of this kind, there may...be a range of decisions that
it would be reasonable to make. Anderson appeals are not to be decided on the counsels of
perfection to which hindsight lends itself (cf Ditta v HM Advocate)".
In Grant v HM Advocate (supra) the proposed criticism was, yet again, of the defence's
failure to obtain an expert opinion on a particular point; although the defence
had instructed an expert in the relevant field.
Once more, and in trenchant terms, the Lord Justice-Clerk (Gill) set out
the parameters of Anderson appeals. Once more, it is worth repeating, at some
length, just what he said, given its direct application to a case such as this
one:
"[21] ...In Anderson v HM Advocate
and subsequent decisions this court has made it clear that to succeed in an
appeal based on allegations of defective representation, the appellant must
establish that the conduct of the defence resulted in a miscarriage of justice
(p 44E-G). That can be said to have
occurred only if the appellant's defence was not presented to the court, and he
was therefore deprived of his right to a fair trial, because counsel either
disregarded his instruction or conducted the defence in a way in which no
competent counsel could reasonably have conducted it...
[22] An Anderson ground cannot rest upon a criticism of strategic and
tactical decisions reasonably and responsibly made by trial counsel. These are matters within the scope of
counsel's legitimate judgment...An Anderson appeal should not be granted leave if all that is
alleged is that the defence would have had better prospects of success if the
defending counsel had pursued a certain line of evidence or argument, or
pursued a different strategy...
[23] Many of the increasing number
of Anderson appeals are based on
allegations of breach of instructions that rest only on the say-so of the appellant
himself; or on
criticisms of decisions that are prima
facie within the legitimate scope of counsel's discretion; or on speculative allegations which the
appellant's advisers hope that they may be able to substantiate at a later
date. ....this court should not countenance the granting of leave to appeal in
such cases.
[24] Those presenting such appeals
should bear in mind the seriousness of what they allege. Criminal defence work, if carried out
conscientiously, is demanding and stressful. All too often, convicted persons blame their
counsel rather than themselves for their misfortune. An Anderson ground of appeal...constitutes a formal accusation
against trial counsel that he failed to present a competent and responsible
defence. An Anderson appeal puts trial counsel to the trouble of having to
respond to the accusation, often when the ground of appeal gives less than fair
notice of what the accusation is, or where counsel has limited recall of the
case and limited access to the papers.
These difficulties are especially acute where, as in this case, the Anderson allegations are tabled long after the trial. All such
cases cause worry to counsel until the appeal is finally resolved".
(b) The Test Applied Generally
[44] The Anderson grounds of appeal in the present case come nowhere near
satisfying the test set out in that seminal decision and the numerous cases
thereafter. Indeed, following upon Grant v HM Advocate (supra),
they would have been very fortunate to have passed the stage of the sift. If the
general principle is that the appellant had the right to have his defence
presented to the court, and in particular to have it put before the jury, it is
clear that this right was both afforded to him and exercised by him. His defence was that his wife's allegation of
rape was a complete fabrication; that is to say that she had made up a story of
forcible intercourse and attempted anal intercourse. It was that the evidence of injury was created
in part by the complainer inflicting the bruising on herself
and, in part, by having already the bruising, for one reason or another, in
advance of the incident. It was that
there had been no underwear torn in the course of the incident and no use of
Vaseline. That is the defence which was
presented to the jury.
[45] The complainer
was cross-examined at length by defence counsel. He succeeded in demonstrating,
in the mind of the trial judge, that she held a "vicious, vindictive and
sarcastic attitude". That must rank as a
successful exercise in cross-examination, even if it is clear that the jury's
view of the complainer must have been markedly different from that of the trial
judge. In due course, counsel proceeded
along the instructed line that the complainer was making up her account and her
distress; thus no doubt emphasising that the account and the distress could be
manufactured and the evidence about both aspects depended upon the conduct of
the complainer herself. He attempted to
use the same line with Dr Murie in relation to a description of tenderness
in the region of the vagina and anus.
[46] In due course,
the appellant gave evidence and denied the allegations. Had he been believed, or had his evidence
raised a reasonable doubt in the minds of the jury, he would have been
acquitted. He was not believed; and with
good reason standing the evidence from the older child, the service station
staff, the medical witnesses, the findings at the house by the police and the
agreed scientific results from the anal swab.
(c) The Pay-in Book
[47] The first
specific criticism levelled at the appellant's solicitor and counsel rests upon
the existence of the bank pay-in book. It
is said first that it ought to have been lodged. This has to be looked at initially from the
perspective of pre-trial preparation. From
a defence viewpoint, there is no reason for lodging something unless it has
some kind of value. If that value is not
obvious, it can be dangerous to lodge a production, which might subsequently
prove to be of use to the Crown. It
appears to have been the appellant's position that the existence of the bank
account supported his position that the complainer was planning to leave him. The proposition was that she had opened this
account for that purpose. In this
regard, however, it is worth noting at the outset that there was no
contemporaneous written material put before the Court confirming just what the
appellant's pre-trial position was. Thus
there were no precognitions of the appellant or notes from the two
consultations stating, even in broad outline, what his position was; far less
containing any mention of the bank pay-in book and its particular significance.
[48] It is
regrettable that the Commission do not seem to have made any enquiries about
the operation of the bank account, as distinct from proceeding upon the
appellant's ipse dixit concerning its
significance. As has been demonstrated,
this account was closed almost four years in advance of the incident. It could have had no probative value at all,
seen from the perspective of pre-trial preparation. Had the defence made inquires into the
provenance of the pay-in book, all that would have occurred would have been
that it would have been discarded by the defence as an item of any value. Its use to show the complainer's imminent
desertion and duplicity would have been entirely counter productive. As counsel comments, what was the appellant
doing with the complainer's bank account pay-in book? In this context, it is difficult to grasp
just what Mr Belmonte perceived as being the value of the existence of the
bank account, unless he was under the mistaken understanding that the account
was operating at the time of the incident.
[49] Next, it is
worth looking at the value of the pay-in book in the context of the trial. The suggestion is that it could have been
used in cross-examination, once the complainer had denied the existence of the
account. There is something distinctly
peculiar about this complaint. How could
the appellant have known that the complainer was going to deny the existence of
the account; unless of course he knew that (as she now maintains) she did not
know about it in the first place? It was
the appellant who had possession of the pay-in book. Why would Mr Belmonte be surprised that
counsel had not lodged the pay-in book as a production, even if that were
counsel's function (which it is not), when any importance attached to it could
only arise during cross examination?
[50] Once more, it
bears repeating that there is no written material which demonstrates that counsel
ever saw this book or a copy of it. Mr Belmonte
wrote to the appellant to the effect that after the trial "the original had
been returned to him with counsel's papers". But he is not reported to have said that to
the Commission and he did not say that in response to the Court's request for
his comments. Rather, he wrote in
connection with the opening of the account that:
"Information
to that effect was given to...[Mr] Brady...for his
use in cross examining the complainer and was left in his hands to present
appropriately".
Counsel provides a convincing explanation doubting that he
ever had the principal book, because, as is indeed the case, it is rare, for a
variety of practical reasons, for counsel to be given principal documents and
even rarer (if they are prudent) for them to retain them in advance of or
during the course of a trial. The Court
is not satisfied that Mr Brady ever had the pay-in book or a copy of it
for use in cross examination.
[51] Even if
counsel did have the pay-in book or a copy of it, its value would have been
minimal. Its relevance is again said to
have been in the context of the complainer's departure. This was an entirely collateral line of
questioning, which the trial judge was right to query and which he may well
have been justified in excluding altogether. He did not and it is true that the complainer
denied ever having a Barclays Bank account. Should counsel then have embarked upon a
course of cross examination on whether she did or did not? It is highly doubtful. The case involved an allegation of a brutal
assault and rape. The complainer was
cross-examined at some length by counsel. He had used some lines which the appellant had
given him, which had turned out to be inaccurate (eg
the sister's husband's prosecution).
Cross-examination of complainers in rape cases is a difficult task,
especially when, as in the present case, the complainer is plainly distressed
while giving evidence. It often has to be
conducted, at least in part, with a degree of delicacy. Care has to be taken not to create the wrong
impression in the minds of the jury by, for example, questioning a complainer
at length and/or on apparently collateral or trivial matters. Whether a particular line should be used is
very much a tactical decision for counsel to take during the trial. Although counsel may plan to use a particular
line in advance of cross-examination, he can only sensibly take a decision on
whether to follow that through once he is on his feet questioning the
complainer and, at the same time, gauging her mood and reactions and, sometimes
more important, those of the members of the jury.
[52] Cross-examination
in the context of a jury trial is not a mechanical task involving the "putting"
of the defence case "fully" to the complainer.
Done well, it is a learned skill involving the taking of multiple
immediate decisions in the face of a variety of different explanations and
reactions occurring live in the courtroom. The results of the decisions taken may be
irreversible. Counsel did not pursue the
matter of the pay-in book here either because he did not have the ammunition
(i.e. the document) to do so or, as he explains in his Note, because he
considered that it might have raised more questions than it answered, given its
peripheral relevance. In short, it was a
tactical decision for him to take at the time. The decision which he did take, for whatever
reason, was one which a skilled and competent counsel may well have taken in
the circumstances. As outlined above,
the cross examination was conducted in a skilful manner which at least
persuaded the trial judge that the complainer was not an entirely
straightforward person. In summary, the
complaint in the ground does not come close to meeting the test desiderated in
the cases and the appeal based on this ground must fail.
(d) The Medical Evidence
[53] Whether an
expert report ought to be instructed in advance of a trial diet is again
normally a question of strategy and tactics.
It is not the case that, just because there is medical or scientific
evidence of a potentially incriminating nature against an accused, the defence
are thereby compelled to instruct a different medical or scientific expert on
the off chance that there might be a way in which the evidence can be explained.
Were that to be the case, there would be
a substantial amount of unnecessary duplication of effort in the preparation of
criminal trials. It is a question of
fact and circumstance, and above all professional judgment, whether an expert
report should be instructed and, in due course, whether the expert's testimony
should be adduced. There are many
instances where there are medical or scientific findings linking an accused to
a scene or indicative of a particular type of behaviour, which are not
contradicted by expert evidence led by the defence. That is not through negligence but because
experience and/or common sense may dictate that it is inadvisable to seek to
challenge the particular findings in themselves. Rather, the more advisable course of action
may be to seek to explain the findings away in a manner consistent with the
defence version of events. Alternatively, it may be prudent to say as little as
possible about the findings and to attempt to deflect the jury's attention onto
other aspects of the case.
[54] When a skilled
and experienced counsel considers a case, he will decide the way in which to
deal with any medical or scientific evidence.
It may be that he will consider that the existence of certain findings
(eg of bruising or scratches shown also in photographs) cannot be contradicted
as fact, but may be circumvented as incriminating in a number of different
ways. He may decide that the best course
is to deal with the evidence simply by cross-examination. That is a decision he is entitled to take. If he can see no purpose in instructing an
expert report, he is entitled not to advise instructing an unnecessary report
as part of his general duties to the court and the general public.
[55] There may, of
course, be circumstances where scientific or medical evidence is so damning
that it does require to be countered (if it can be) by seeking the advice of an
expert. This may be the case where that
evidence is the principal incriminating source against the accused and it
cannot be made consistent with the accused's explanation. But that was not the case here. The
appellant's position was that the injuries were either pre-existing or that the
appellant had caused them herself. That
was the defence to be put to the jury. Counsel
would therefore reason that the line to be taken was exactly that. He would
proceed on the basis that he could cross-examine along the line that the
injuries might have pre-dated the incident and/or that they were self
inflicted. He would present the defence
that the complainer's distress and complaints of pain were fabricated and that
the witnesses speaking to both had been duped by her artistry. There was no reason, in the absence at least
of hindsight, to hunt for some obscure medical reason surrounding a single
entry in the records of the GP concerning "spont. bruising".
[56] It is, in any
event, apparent that going down the spontaneous bruising route would, or at
least could have been, as counterproductive as pursuing the bank account line. In the context of what had become a violent
marriage, it is clear, as Dr Murie subsequently reports, that the bruising
noted by the GP was unlikely to have been spontaneous, as distinct from being
caused by the appellant on an earlier occasion. Raising spontaneous
bruising as a cause of the injuries, which were observed on the complainer on
the day of the incident, would have been almost risible in the context of this
case. It would have been a wholly
inadequate explanation for the existence of "fingertip" or other restraint type
bruising in at least three different places; at least one of which the
appellant actually accepted would have been caused by him at the relevant time.
It could not have explained the grazing
and scratching associated with the bruising. It would not have explained, as the Advocate
Depute submitted, how the complainer was able to anticipate the onset of such
bruising in advance of reporting the incident. Contrary to the submissions made, it is highly
doubtful whether any counsel of ordinary competence would have attempted to
develop such a line in the context of this case.
[57] A
disappointing feature of the reference is also the content of the reports from
Dr Cochran. This may not be Dr Cochran's
fault, since the court was not told what he was asked to do. What is plain is that he was not placed in the
position of an expert instructed by the defence. If the object of the Commission's medical
inquiries was to see what would have happened if a decision to instruct an
expert had made in advance of the trial, then their approach was seriously
flawed. The only way of ascertaining
what advice the defence at the trial would have had would have been to instruct
an expert, sending him only the pre-trial materials and asking him for his
views on that material in the context of the defence proffered by the client. That is not what occurred here. Dr Cochran was not only supplied with
the pre-trial material but was also provided with a transcript of the evidence
of the complainer and that of Dr Murie. For oft explored reasons, the practice of the
courts is not to permit one expert to scrutinise the testimony of another
expert before expressing his own view. Yet
the Commission permitted exactly that sort of situation to occur and it perhaps
not surprising, therefore, that Dr Cochran's report is in the form it is.
[58] What Dr
Cochran produced was not a report of the type which might be expected of an
expert instructed at the time. Thus it
expresses no view at all on the critical feature of the medical evidence; namely
whether the injuries recorded are consistent with rape, as it was then
defined. Dr Cochran says nothing
about whether he would reach the conclusion that the bruising was caused by a
person restraining or striking the complainer.
He expresses no view on the likelihood or otherwise of such injuries
having being caused in the context of consensual intercourse, as the appellant
maintained. But counsel could not have
adduced Dr Cochran in evidence without knowing what his general views on
these critical issues would be. Dr Cochran
has produced a somewhat detailed commentary or appraisal on parts of Dr Murie's
evidence and attempts to pick some holes in it after the event. This is a straightforward exercise, which
might be done in many cases. However,
without addressing the central issues based on the pre-trial information it is
almost valueless in the context of an Anderson appeal. It is of a
type which simply could not have existed in advance of a trial.
[59] Dr Cochran's
criticism of Dr Murie's use of terminology in her evidence is trivial
given that Dr Murie was trying to communicate with a jury. His reference to Dr Murie speaking to an
injury to the "perineal body" is inaccurate. She spoke to no such injury, even if, on
reading the defence precognitions, she might have done, if asked. More important, other than raising the red
herring of the bruising being "spontaneous", Dr Cochran does not attempt
to deal with the simple fact that this woman was covered in bruises on her
head, limbs and body. He does not,
therefore, address the central defence contention that these might have been
self inflicted or pre-dated the incident.
He does not attempt, perhaps wisely, to explain how a woman who was
going to report a false rape and had purportedly planted evidence of torn pants
and Vaseline, as well as inserting that Vaseline into her anus, could have
predicted the future occurrence of "spontaneous bruising" of the degree found.
[60] Having
considered the cross-examination of Dr Murie, it is clear that counsel
approached his task in an entirely sensible and appropriate manner. Once more, due allowance has to be given to
the risks of cross-examining an expert in the field; as Dr Murie clearly
was. As in the case of complainers, but
in a different way, cross-examination of experts is a learned skill and not a
mechanical process of exploring all possible lines of inquiry, thus potentially
damaging the defence case by shoring up the expert's opinion. Brevity is often the sensible course;
especially when it is clear that the planned line is not going to be
productive. That was the course taken by
counsel in this case. On
encountering a robust response from Dr Murie, counsel moved swiftly on,
deflecting attention onto a less important aspect of the evidence and quickly
ceasing. This approach cannot be
faulted.
[61] The Court can
but stress the need for those presenting defective representation appeals, and
for the Commission, to consider carefully the remarks of the Lord Justice-Clerk
(Gill) in Grant v HM Advocate (quoted supra)
concerning the seriousness of what is alleged; it being a formal accusation
against trial counsel that he failed to present a competent and responsible
defence.
(e) Directions on Distress
[62] Finally, on
the second ground of appeal, this is without merit and can be dealt with in
short order. The trial judge's
directions were entirely correct in explaining to the jury that distress was
used to corroborate lack of consent.
This was in terms of what was, at the time of the trial, the recent Full
Bench decision in Smith v Lees (supra), of which the trial judge was doubtless aware. In any event, with the plethora of bruises
which were found on this complainer, the existence of additional distress was
of marginal significance in the proof against the appellant.
[63] There is no
ground upon which it can be asserted with any force that a miscarriage of
justice may have occurred in this case standing the compelling evidence against
the appellant. The appeal must
accordingly be refused.
