Scottish High Court of Justiciary Decisons

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Cite as: 2009 SCL 436, 2009 SCCR 301, [2009] ScotHC HCJAC_13, 2009 GWD 6-95, [2009] HCJAC 13, 2009 SLT 284

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Kingarth

Lord Eassie

[2009] HCJAC 13

Appeal No. XC408/05

OPINION OF THE COURT

delivered by LORD OSBORNE

NOTE OF APPEAL AGAINST CONVICTION

J B

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Shead; Duthie; McClure Collins

Alt: Di Rollo QC; Crown Agent:

3 February 2009

The background circumstances

[1] On 21 April 2005, at the High Court at Glasgow, the appellant was convicted by a majority verdict of the jury on charges (1), (2), (4), (5) and (6) of the indictment which he faced, subject to certain amendments and deletions. The convictions recorded in terms of those charges, were as follows:

"(1) On various occasions between 1 May 1970 and 27 February 1975, both dates inclusive, the precise dates being to the prosecutor unknown, at (a location in Scotland) you did use lewd, libidinous practices and behaviour towards JB or F, your sister, born 28 February 1963, ..... and did place your hand over her mouth, threaten to kill her, insert your fingers into her private parts and attempt to force her to take your private member into her mouth;

(2) On various occasions between 1 May 1970 and 27 February 1975, both dates inclusive, the precise dates being to the prosecutor unknown, at (a location in Scotland) you did instruct JB or F, your sister, born 28 February 1963......to enter your bed, force her to lie face down on said bed, place your hand over her mouth, threaten to kill her and you did rape her;

(4) On various occasions between 17 September 1970 and 16 September 1972, both dates inclusive, the precise dates being to the prosecutor unknown, at (a location in Scotland) you did use lewd, indecent and libidinous practices and behaviour towards RB or D, your sister, born 17 September 1957.....then a girl of or above the age of 12 years and under the age of 16 years and did enter her bedroom, expose your private member to her, induce her to touch your private member and insert your fingers into her private parts: CONTRARY to the Criminal Law Amendment Act 1922, section 4(1);

(5) Between 17 September 1970 and 17 September 1972, both dates inclusive, the precise date being to the prosecutor unknown, at (a location in Scotland) you did assault RB or D, your sister, born 17 September 1957, ......and did enter her bed in a state of undress, force her legs apart and attempt to insert your private member into her private parts and you did thus attempt to rape her;

(6) On various occasions between 18 January 1970 and 17 January 1976, both dates inclusive, the precise dates being to the prosecutor unknown, at (a location in Scotland), you did use lewd, indecent and libidinous practices and behaviour towards MB, your brother, born 18 January 1962.....and did expose your private member to him and induce him to masturbate you, punch him on the body, and legs, attempt to penetrate his hinder parts with your private member and thus attempt to induce him to penetrate your hinder parts with his private member".

[2] On 12 May 2005, the trial judge sentenced the appellant to 11 years imprisonment in cumulo in respect of charges (1), (2), (5) and (6), said period to date from 21 April 2005; and to imprisonment for a period of 1 year in respect of charge (4), said period to run consecutively to the aforesaid period. The Court also certified, in terms of section 92(2) of the Sexual Offences Act 2003, that the appellant had been convicted of the foregoing offences and that they were sexual offences to which Part II of that Act applied.

[3] On 17 August 2005, the appellant lodged a Note of Appeal against conviction and sentence, in which it was stated that his appeal against conviction was on the following grounds:

"(a) It was oppressive to proceed to trial on such stale charges after a very lengthy delay in reporting by the complainers. In particular, the stale charges were drafted with a very wide latitude of time in the indictment which was excessive and unfair, such that a fair defence was not possible. In addition, the accused's mother, who would have been an important defence witness was dead by the time of the trial. The defence's opportunity to trace and recover contemporaneous records was lost. Further and in any event, the trial judge erred in refusing to permit the whole of a defence minute under section 275 of the Criminal Procedure (Scotland) Act 1995 as amended to allow relevant evidence to be led before the jury. A copy of the minute is attached. The convictions were accordingly oppressive.

(b) Counsel's representation of the accused was defective. He did not adequately challenge the Crown's principal witnesses of fact and permitted them to make statements adverse to the appellant's interest without contradicting them with defence evidence which was available. Further, counsel's speech to the jury had the effect of removing the real defence from the jury. The witnesses of fact were cross-examined on the basis that they were frank liars and had a financial, spiteful or other malevolent motive to invent their allegations. These were the appellant's instructions. In his speech to the jury, counsel invited the jury to find that the witnesses to fact were not liars, but instead were honest and had persuaded themselves of the truth of their false allegations. This was the subject of comment by the trial judge. Cumulatively, these errors amounted to defective representation of the appellant by counsel".

[4] In view of the nature of the allegations made in ground of appeal (b), senior counsel who represented the appellant at his trial was invited to make such comments as he thought fit on the terms of the ground of appeal. His response, so far as material to this appeal was in the following terms:

".....Mr B's accusers were his sisters.....and his brother..... Each gave clear ....accounts against him; he in turn, as well as denying the allegations, made charges against them of various kinds of improper conduct. These are set out in the section 275 application along with other matters touching on credibility as distinct from wrongful conduct. ......I believe I knew Mr B's case well and fully understood his instructions. I also believe that I cross examined thoroughly and vigorously (though I hope not aggressively or cruelly).

Not all of the section 275 material was allowed. I believe I put all permitted points to the witnesses.

I do not know what is being thought of when it is said that I did not use available evidence to contradict the Crown witnesses.

It is right to say that in my address to the jury my approach differed from the suggestions I put in my questions in cross examination. The older sister and the brother were impressive witnesses, not least because of their moderation and their insistence that they still loved ....or till recently had loved .....the appellant. The other sister was also a formidable obstacle for the defence, even if not quite up to the standard of [her sister and brother].

By the time I spoke to the jury about the evidence I was of the view that I would do more harm than good to the defence case if I went over all the challenges made when the sisters and brother were bring crossed. The jury, by the time of speeches had heard both sides of the story. The case had moved on since its start when the ....Crown witnesses were in the box.

As it turned out I think the way I crossed - deliberate lies - and the way in which I put it to the jury - mistake - gave Mr B two bites of the cherry. This was the way the trial judge put it in his charge. He reminded the jury of how I had put matters in cross and of the rather different approach (I think he said) I had adopted in my speech.

There was no suggestion of criticism in the judge's words and above all no unfairness to Mr B.

The important point, however, is that no one could have been in any doubt that the case I was making for Mr B, in cross and in speaking to the jury, put his credibility before the jury as preferable to that of his accusers.

.........

At no time did he criticise or suggest that I was not following or had not understood his instructions or any of the information he had supplied.

On the contrary he expressed complete satisfaction and showered me with compliments. I particularly remember his flattering words when I finished my speech to the jury.

I do have to suggest that the criticism he now makes of me is an after-thought".

Submissions of the appellant

[5] At the outset, counsel made clear that he did not intend to argue the first part of ground of appeal (a). Only the point raised in the last three sentences of that ground would be advanced. As regards ground of appeal (b), counsel explained that the focus would be on the contrast between the nature of the cross examination of crucial witnesses and senior counsel's speech to the jury. He intended to make submissions concerning ground (b) first.

[6] It had to be explained that the Crown case had depended on the application of the Moorov doctrine as between the allegations concerning the several complainers. At the trial, the appellant himself had given evidence and defence evidence had been led. Serious issues arose concerning the character of the complainers and other matters. Expert evidence had been led from Professor Anthony Busuttil. The trial judge had invited the jury to consider the charges in two groups. The first group consisted in charge (2), of rape and charge (5), one of attempted rape. The second group consisted in the charges of lewd practices, charges (1), (4) and (6).

[7] There had been no dispute whatever concerning the instructions given by the appellant to senior counsel. They were to the effect that the complainers were lying in making their allegations against the appellant. That was acknowledged by senior counsel in the letter, dated 2 September 2005, which he had written in response to the invitation to comment on the grounds of appeal, No.13 of the appeal process. In this connection counsel referred to the trial judge's report, page 19 and the terms of his charge to the jury between pages 52 and 57.

[8] The appellant's submission was that his case had been undermined by the volte face performed by senior counsel. It was accepted that there had been a differential approach; the possible effect of drink and drug abuse on the reliability of the complainer MB had been raised. The other reliability issue was based upon the evidence of Professor Busuttil concerning the evidence of the complainer JB or F. He had stated that if she had been repeatedly raped, the jury would have expected to hear of signs of physical abuse. There was no evidential basis to show that the evidence of the complainer MB could have been tainted by drink or drugs.

[9] While, no doubt, counsel always had some degree of discretion in the presentation of a client's case, here the cross examination of the complainers had been on a particular footing, but the defence speech to the jury was on quite a different one. The background included the facts that the appellant's own evidence had been that the evidence of the complainers against him was perjured. That position had been departed from by senior counsel in his speech to the jury. The trial judge had commented on these matters between pages 19 and 21 of his Report. The narrative of the speech of senior counsel to the jury had been transcribed and, so far as material, could be found between pages 929 and 935 of the transcript.

[10] The reality was that senior counsel had been under a professional obligation to conduct the case according to the instructions of the appellant, however silly or counter-productive, or otherwise unsatisfactory those instructions might have been. Of course, if the instructions were to the effect that the crucial witnesses were lying, issues of reliability could also be explored. Here, in one sense, the appellant's defence was before the jury, but that was not enough. While senior counsel had not been unsubtle, nevertheless he did depart from the instructed basis of the defence. What he had implied and indeed expressed to the jury was what might be called "false memory syndrome", for which there had been no evidential basis whatsoever. Senior counsel had even acknowledged before the jury that the crucial witnesses had been doing their best to tell the truth. Thus, the framing of the speech to the jury had been designed to distance the defence from the appellant's own evidence, which was, in effect, disowned. It was not necessary for the Court to say that, if the speech had been couched in different terms, the result would have been different. That question could not be gone into. The real question was whether the appellant had received a fair trial. The submission was that he had not. For support for this submission, counsel relied upon Anderson v HM Advocate 1996 J.C.29; 1996 S.C.C.R.114 at pages 120, 121, 123, 125 to 128 and 131 to 132 of the SCCR report. These passages made it clear that the duty of counsel conducting a criminal defence was to follow the instructions which had been given; the tactics to be adopted in undertaking that task were a matter for counsel. Even if the focus was not on the instructions themselves, serious damage had been done by the defence by the adoption of the different approach taken in the speech to the jury. Counsel also drew our attention to Garrow v HM Advocate 2000 S.C.C.R.772, Hemphill v HM Advocate 2001 S.C.C.R.361, A.J.E. v HM Advocate 2002 J.C.215; 2002 S.C.C.R.341 at paragraphs 6 to 8 and 11, Winter v HM Advocate 2002 S.C.C.R.720, at paragraphs 35 and 48, Burzala v HM Advocate 2008 S.L.T.61 at paragraphs 33, 35 and 41 and Grant v HM Advocate 2006 S.C.C.R.365.

[11] On account of the circumstances described there had been a miscarriage of justice. It was plain that the trial judge had been surprised at the course which events had taken, in consequence of which he gave certain directions to the jury, at page 52 to 58 of the transcript of the charge. However, what he said there could not have had the effect of retrieving the situation and avoiding the damaging consequences to the appellant of senior counsel's actions.

[12] Counsel for the appellant then turned to support that part of ground of appeal (a), which was to be maintained. The criticism was that the trial judge had erred in refusing to allow the whole of a minute on behalf of the appellant under section 275 of the Criminal Procedure (Scotland) Act 1995 and thus to allow relevant evidence to be led before the jury. The trial judge had explained the reasons for his decision in this regard between pages 8 and 18 of his Report. In connection with this submission counsel drew our attention to Moir v HM Advocate 2007 J.C.131; 2007 S.C.C.R.149; also 2005 J.C.102; 2004 S.C.C.R.658; particularly paragraphs 16 to 39 of the former report. He also relied on HM Advocate v DS 2007 S.C.C.R.222, particularly paragraphs 26, 28, 44 to 46 and 70 to 78. It was evident that the word "behaviour" in section 274(1)(c) of the 1995 Act did not embrace statements. Counsel accepted that the statutory provisions were not straightforward to interpret. He pointed out that the trial judge had not had the benefit of access to Moir v HM Advocate 2007 J.C.131; 2007 S.C.C.R.149 and HM Advocate v DS at the time when he made the relevant decision.

[13] Counsel went on to draw our attention to certain other authorities which bore upon the approach which a trial judge should take in relation to an application under section 275 of the 1995 Act. These included Dunnigan v HM Advocate 2006 S.C.C.R.398. In that case, the discretionary nature of the exercise which the trial judge had to conduct had been emphasised at paragraph 14. However, there had been no argument addressed to the Court regarding the test to be applied. In Wright v HM Advocate 2005 S.C.C.R.780, again the discretionary nature of the exercise had been emphasised in paragraph 8 of the Opinion of the Court. Counsel said that the foregoing cases ran against the submission which he was making. That submission was supported by Tant v HM Advocate 2003 S.C.C.R.506, a decision under the old statutory provisions. In paragraph 17 of that case the Court had heard an argument to the effect that the issue was a matter of law rather than discretion. The issue, after trial, was, of course, whether there had been a miscarriage of justice. Counsel also relied on Love v HM Advocate 1999 S.C.C.R.783, again a decision under the old statutory provisions. It was accepted that the wording of those provisions differed in certain material respects from the current provisions. Counsel said that he was asking the Court to differ from the decisions in Wright v HM Advocate and Dunnigan v HM Advocate, where the issue in question had not been argued. It might be appropriate to convene a larger Court to examine the matter. Counsel contended that the questions before the Court were (1) was the evidence concerned admissible at common law; (2) ought that evidence to have been admitted under the scheme contained in sections 274 and 275 of the 1995 Act?

[14] Counsel then proceeded to examine the trial judge's decision in detail. As regards paragraph (b) of the minute, the last sentence related to false allegations; the making of such allegations should be regarded as relevant. The trial judge was wrong to exclude that material. As regards paragraph (m), its content related to sexual matters. The trial judge had not regarded them as relevant to establishing the guilt or otherwise of the appellant. In that respect he had been in error. Paragraph (q) of the minute related to allegations of violence against the first named complainer towards the appellant and others. It was submitted that that might have shown a disposition on her part of hostility. It should have been allowed as being potentially relevant. As regards paragraph (r), its contents reflected on the honesty of the first and second named complainers. The boasting referred to might be a statement and therefore outwith the scope of the legislation. As regards paragraph (c), it again related to the making of false allegations, this time by the second named complainer. That material was relevant and should have been allowed. As regards paragraph (f), counsel accepted the drafting of this part of the minute was poor. Turning to paragraph (n), once again it related to false allegations made by the second named complainer. It should have been allowed. The same was true of the contents of paragraph (o). In relation to paragraph (s) there were several parts. Counsel said that he could not support what was said in the last sentence of this paragraph. It was accepted that some part of it related to statements by the third named complainer. However, with these qualifications the paragraph should have been allowed.

[15] What mattered was that the appellant had lost the opportunity of challenging the evidence of the complainers in certain respects. In all the circumstances, a miscarriage of justice had occurred and the appeal ought to be allowed.

The submissions of the Crown

[16] Dealing first with the issue of allegedly defective representation, the Advocate depute submitted that the Court ought to consider carefully what the central issues in the trial had been and have regard to the nature of the defence. The three complainers had been making allegations of sexual abuse in the period between 1970 and 1976. The position of the appellant had been that these allegations were completely false. While it was true that senior counsel in his speech to the jury had referred to a lack of intention to deceive in relation to the complainers, it was necessary to look carefully at the cross examination of JB or F and RB or D; only rarely were "lies" mentioned. For the appellant to characterise what was done as a failure to present his defence was wrong. The defence was to the effect that the Crown witnesses were to be discredited. Senior counsel for the appellant had endeavoured to achieve that. While what senior counsel for the appellant had said at page 933 of the transcript of the proceedings could not be gainsaid, he had advanced much material to support the appellant's defence. The true issue had been whether the evidence of the complainers was true or false. It was commonplace for counsel in a trial not necessarily to agree with their client's own view of the reason why the evidence given was false. Senior counsel at the trial had examined all three of the complainers carefully and at length, although he had not got very far in disturbing those witnesses' evidence. In his speech to the jury he had concentrated on the issue of the truth or falsity of the evidence; it was submitted that broadly speaking, the speech had mirrored cross examination.

[17] The Advocate depute then drew our attention in detail to passages in the cross examination of the complainers. In the case of JB or F, senior counsel had put to her in a variety of ways the suggestion that her evidence was false, including the suggestion that it was, a "tissue of lies". However, the suggestion had also been made that it was clearly wrong or confused. The important point was that there was no suggestion that senior counsel had failed to put relevant material to the witness. There was no allegation that there had been inadequate preparation for the trial. So far as the complainer RB or D was concerned, there had been no suggestion of lying in cross examination. It had been suggested that her mind had been poisoned, that what she said had happened had not, and that nothing sinister had occurred.

[18] The position had been that the complainers had been impressive witnesses; counsel had had to decide how to present the case against that background. Plainly, it would not have been helpful to characterise the complainers as liars alone. Senior counsel had been quite entitled to do what he did and to suggest that their evidence could not be relied upon. The Advocate depute had been unable to find any reported case which was comparable to the present one. However, he drew our attention to certain dicta in McBrearty v HM Advocate. In paragraph 60, the Lord Justice Clerk recognised the importance of the Appeal Court respecting decisions made by counsel in the course of and under the pressure that existed during a trial. Furthermore, in paragraphs 34-36 there were helpful observations on the scope of an Anderson appeal. It was submitted that here the jury had had the defence put before them. The manner of the cross-examination of Crown witnesses was a matter for the discretion of counsel; so was the formulation of the terms of the defence speech to the jury. On behalf of the appellant it had been asserted that the appellant's instructions were to the effect that the complainers were liars. However, it was not obvious that those instructions were that they should be challenged only as liars. The instructions must have been that the complainers' evidence should not be accepted. However, the Advocate depute accepted that, in evidence, the appellant had said that the complainers were lying. The background included the fact that the trial judge had given directions to the jury regarding the assessment of the credibility of Crown witnesses. So, if it were erroneous to say that the defence case had been presented to the jury, in fact it was before the jury. If that were so, the Anderson case must fail. Putting the matter in another way, the appellant received a fair trial. Full reasons had been put before the jury by senior counsel for the appellant as to why the jury ought to reject the Crown's case.

[19] The Advocate depute then went on to deal with that part of ground of appeal (a) which had been supported. He submitted that, in dealing with an application under section 275 of the 1995 Act, the Court was, at least in part, exercising a discretion. Section 275(1) contained the word "may". In these circumstances only the limited grounds of attack available against a discretionary decision were available to the appellant. It was of no assistance to examine earlier cases decided under the older legislation of which the wording had been different. In this connection, reliance was placed on Moir v HM Advocate 2005 J.C.102; 2004 S.C.C.R.658.

[20] In this case the application under section 275 had involved twenty different heads of material. Eleven were allowed and nine rejected in part or in whole. The trial judge had made a careful and considered decision. No serious attack had been mounted against his exercise of his discretion.

[21] Certain recent cases concerned with the wrongful allowance or rejection of evidence were helpful. In Dye v HM Advocate [2008] HCJAC 40, it was accepted that an erroneous decision had been made by the sheriff in terms of section 275 of the 1995 Act. What was important to note was that that did not determine the fate of the appeal; the question which then arose was whether the refusal of the sheriff to allow questioning of the complainers about certain matters had resulted in a miscarriage of justice. Thus, in the present case, even if counsel for the appellant had been able to show that the decision of the trial judge in terms of the application under section 275 had been, to any extent, flawed, it would still be necessary for the appellant to show that the error concerned had resulted in a miscarriage of justice. That had not been done.

[22] In that connection the Advocate depute relied upon McInnes v HM Advocate 2008 S.L.T.941. That case had been concerned with the consequences of non-disclosure. At paragraph 20 in the Opinion of the Court delivered by the Lord Justice General, the test propounded was whether, in consequence of the failure, there had been created a "real risk of prejudice to the defence". So, if this point were to be reached in the present case, that was the test that had to be applied. Looking at the circumstances of this case, and of the three complainers, there had been no real risk of prejudice to the appellant. The case of Moir v HM Advocate 2007 S.C.C.R.159; 2007 J.C.131, was not of assistance. The Court had not considered the terms of any specific test. There had been no argument regarding tests, as appeared from paragraphs 27 and 35. As regards the detailed criticisms made in the present case of the decision of the trial judge on the application under section 275 of the 1995 Act, the Advocate depute confined himself to submitting that nothing excluded from evidence was of any great significance. In relation to the matters which were excluded, in any event, warnings might well have required to have been given to the witnesses concerning possible criminal offences. In all the circumstances the appeal should be refused.

The decision

[23] We shall follow the order of submissions adopted by counsel for the appellant and deal with ground of appeal (b) in the first instance. It will be noted that, in this ground of appeal, it is alleged that senior counsel for the appellant "did not adequately challenge the Crown's principal witnesses of fact and permitted them to make statements adverse to the appellant's interest without contradicting them with defence evidence, which was available". Counsel for the appellant did not support that part of this ground of appeal. It was acknowledged that the cross examination of the complainers had been extensive and thorough; no instance of a material failure to cross examine those witnesses appropriately was identified. The focus of submission in relation to this ground of appeal was the contrast between, on the one hand, the cross examination of the complainers and the evidence given by the appellant, and, on the other hand, the presentation of the case by senior counsel for the appellant in his speech to the jury.

[24] The starting point in a consideration of this aspect of the case may be thought to be the position of the appellant himself taken up in the witness box. There is no transcript of his evidence before the Court, but we have the trial judge's account of his evidence set out at pages 57 to 58 of his charge to the jury; we also have his account of the appellant's evidence at page 20 of his Report to this Court. In his charge, he said to the jury:

"The accused's position on the whole matter when he was in the witness box was that all the allegations against him were, in his own words, malicious falsehoods and that J, R and M had perjured themselves - that is, they had come into Court and deliberately told lies on oath in the witness box. As I pointed out yesterday, the accused comprehensively denies any wrongdoing whatsoever and you must consider his evidence very carefully".

As regards the cross-examination of the complainers, it is fair to say that the position taken up by senior counsel reflected the appellant's own position, but his challenge to their evidence was more extensive, involving as it did an attack on their reliability as witnesses. In this connection as regards J B or F, we refer to pages 77, 182, 143, 175, 184, 185, 196 and 197 of the transcript. At page 175 it was put to this complainer that her allegations were "just one tissue of lies". At page 197 it was put to her: "That you make the charges you do against him through your evidence as a matter of malevolence and spite in the sense that there is not a word of truth in your allegations". As regards R B or D, the matter was dealt with somewhat less directly in cross-examination. We refer to pages 264, 287, 297, 301, 315, 319 and 345 to 346 of the transcript. At page 297, it was suggested to this complainer that the reason why she had come forward with the allegations that she had was that she had allowed her mind to be poisoned against the appellant. In substance, it was being put to this complainer that she had told lies out of malice towards the appellant. So far as M B was concerned, it was put to him in cross-examination at page 463 that his evidence was false and that no abuse had occurred. At page 468 it was suggested to this complainer that there had been a "touch of spite, malice", or even of revenge in his motivation for giving evidence.

[25] Against the foregoing material, we conclude that the position of the appellant, which must have been reflected in his instructions to his legal advisers, was that the complainers, in making the allegations against him that formed the foundation of the indictment, had been lying. It appears that a number of reasons were suggested for this, as is reflected in the section 275 application lodged on his behalf, much of which was allowed. In that situation, it is now necessary to consider the terms of senior counsel's submissions to the jury; the crucial passage commences at page 932 of the transcript. Having commented on the ages of the complainers and of the appellant at the material time, senior counsel proceeded:

"To that extent it may well be you may think that his memory of events may be somewhat more reliable than that of his accusers but I do not rise to any bait of arguing before you, if any bait indeed is dangled in front of me, of arguing before you that the complainers come into this place and have spoken deliberately lying words to you. Certainly the essence of what I argue before you now and continue during all the time I stand in front of you to do so and you may think the essence of the way I tried to put the case for Mr B in terms of any questions I put, either in cross-examination or in examination-in-chief, the essence of it all is that of course I challenge on JB's behalf virtually every single word spoken by the complaining members of his family against him but do please follow me, ladies and gentlemen, if you would be so kind in what I try to say to you. I challenge the reliability of the essential parts of what the complaining members of his family say to you. I do not suggest, never really did suggest, you may think, except perhaps occasionally in trying to test evidence, that what they were doing was telling lies, deliberate lies".

Later, at pages 934-935 of the transcript he said:

"What I am really trying to say I think is that I have no doubt the two women and M will persuade themselves and genuinely believe that what they have said to you from the witness box is true..... I approach this case and invite you to do so on the basis that those three complaining members of the family probably do themselves genuinely believe, genuinely believe, that what they said happened did".

Two points may be made about the passages we have quoted. First, senior counsel's characterisation of his cross-examination of the complainers cannot be reconciled with the reality of that cross examination, as it appears from the transcript of it. Secondly, in adopting the position that he did, particularly at page 933 of the transcript, that his contention was not that the complainers had been telling lies, senior counsel, in effect abandoned the stance taken up by the appellant in the witness box which must have been the foundation of his instructions. The adoption of that course, we consider, must necessarily have been particularly damaging and prejudicial to the position of the appellant, since he had given evidence. What, in effect, was being said to the jury was that the position taken up by the appellant himself in his evidence was insupportable.

[26] Against this background, we now consider the criteria which have to be applied in the circumstances of this case. In Anderson v HM Advocate are to be found certain passages which emphasise the importance of the instructions of an accused person in the context of their representation. At page 40 (J.C.); 128 (S.C.C.R.), the Lord Justice General, after quoting a passage from the Opinion of the Court in the New Zealand case of R v McLoughlin said:

"We find in this passage a useful statement of the duty of counsel in such circumstances and of the application of the principle that the accused is entitled to a fair trial. No attempt was made to assess in qualitative terms the flagrancy or gravity of the barrister's conduct or the degree of his incompetence. What was examined was the effect which his conduct had on the appellant's right to a fair trial. As to what was said here about the duty of counsel, there may at first sight seem to be a conflict between the statement that counsel has no right to disregard his instructions and to conduct the case as he himself thinks best and Lord President Inglis' statement in Batchelor v Pattison and Mackersy that the legal right of counsel is to conduct the cause without any regard to the wishes of his client, so long as his mandate is unrecalled. But we consider that this description of counsel's duty is a sound one in the context of the conduct by counsel of the defence of his client in a criminal trial. Counsel who represents an accused person in a criminal trial must first obtain instructions from his client about his intended defence. Just as counsel may not tender a plea of guilty unless he has instructions to do so on his client's behalf, so also he may not conduct a defence for a client who pleads not guilty which is contrary to the instructions which he has received as to the basic nature of it. His duty is to act on the instructions which he has been given. How he acts on those instructions is a matter for him, as he is entitled to exercise his own discretion and judgement in the conduct of the defence. What he cannot do is deprive his client of his intended defence by acting contrary to his instructions in this matter".

The importance of instructions was also emphasised in Winter v HM Advocate in paragraph 35, where the Lord Justice Clerk observed:

"To succeed in this appeal the appellant must show not only that the defence instructed was not put forward by counsel, but that the failure to do so was such that the appellant did not receive a fair trial (E v HM Advocate)".

In McBrearty v HM Advocate at paragraphs 34 to 36, the Lord Justice Clerk said:

"Anderson (J.M.) v HM Advocate draws the distinction between a failure properly to present a defence and a judgement as to the conduct of the defence at the trial made in the exercise of professional discretion. In general, a complete failure to put forward an important line of defence, as for example in Garrow v HM Advocate, Hemphill v HM Advocate, E v HM Advocate and Winter v HM Advocate will found a relevant ground of appeal, whereas a judgment made as to manner of presentation of such a line of defence will not (Anderson).

.......

In some cases, it may be difficult to draw the dividing line between a judgement made by counsel in the presentation of the defence and the failure properly to present it at all. But even in the area of professional judgement counsel may make a decision that is so absurd as to fly in the face of reason. In such a case, in our view, the Court is entitled to hold that the defence was not properly conducted (McIntyre v HM Advocate, Lord Coulsfield at page 388). To hold otherwise, in pursuit of a rigid legalistic distinction, would be to lose sight of the underlying question in every Anderson appeal, namely whether the accused was given a fair trial (cf. E v HM Advocate, Lord Justice Clerk Gill at paragraphs 8-10)".

[27] Reverting to the circumstances of this case, in the context of a prosecution for sexual offences such as this, the credibility of the complainers is plainly of fundamental importance. Some accused may only be able to say that the allegations against them are, for whatever reason, untrue. But the position taken up by the appellant here, reflected in the instructions which he gave, was to the effect that the complainers were deliberately giving false evidence, motivated essentially by malevolence and spite. A number of reasons were suggested for this. That position was indeed reflected in their cross examination, along with a variety of other challenges to their credibility and reliability. We regard those particular instructions by the appellant as of crucial importance in this case. However, when, after the hearing of the evidence, the appellant's case was presented to the jury by senior counsel, he abandoned that position and proceeded to present the case upon a different basis, eschewing the idea that the complainers had been giving deliberately false evidence. In so far as that alternative basis appears to suggest some kind of false memory syndrome, there was, it seems, no evidential basis for it. In this situation, we are driven to conclude that the taking of that course represented a material departure from the appellant's instructions as to the basic nature of his defence and deprived him of his fundamental right to a fair trial.

[28] In his Report to this Court, the trial judge, in relation to this ground of appeal, offered the comment

".....that I do not think that counsel's speech had the effect of removing from the jury 'the real defence' that the witnesses were liars. I reminded the jury that that defence had been put in the cross examination of each complainer .... The appellant himself had put that defence forward in his evidence: he said that the allegations against him were malicious falsehoods and the complainers had perjured themselves. I also reminded the jury of that...... Thus in the charge the jury were reminded not only of the way the defence had been presented in the closing speech, but also of the lines on which the witnesses had been cross examined ....and of the assertions by the appellant that the complainers were liars. The situation was indeed unusual but it appears to me that it cannot be maintained that counsel's speech had the effect of preventing the jury from deciding that the complainers' evidence should be rejected on the ground that they had been lying. In my respectful opinion the jury, having listened to the charge, could not have been in any doubt that they were entitled to consider not only whether the complainers were honest witnesses who had persuaded themselves of the truth of their false allegations but also whether the complainers were, in the words of the Note of Appeal, 'frank liars and had a financial, spiteful or other malevolent motive to invent their allegations'. I consider that the effect of the speech and the charge was to provide the jury with two different reasons for rejecting the complainers' evidence".

While the trial judge, no doubt appreciating the difficulty that senior counsel's change of front had created, in the manner which he explains, attempted to keep all lines of defence open for consideration by the jury, in our view, his endeavour did not obviate the miscarriage of justice which we consider occurred. The fact of the matter was that, in the passages from senior counsel's speech which we have quoted, the jury were told that the line of defence clearly expressed in the appellant's own instructions and evidence was being abandoned. That must have reflected most adversely upon the appellant and his evidence in the minds of the jurors, in our opinion. We do not think that the consequences of that step were capable of being retrieved by the observations of the trial judge in his charge to the jury. We consider that irretrievable damage was done to the position of the appellant, in consequence of which his trial was not fair. For all these reasons, we are minded to quash his convictions.

[29] Having reached the conclusion we have on ground of appeal (b), it is unnecessary for us to make a decision in relation to ground (a), in so far as that ground was supported in argument. However, suffice it to say that, having considered the careful treatment by the trial judge of the application of the appellant under section 275 of the 1995 Act, we can detect no flaw in his approach.

[30] In the foregoing circumstances, the case will now require to be put out for a hearing to consider any application that the Crown may wish to make for a grant of authority to bring a new prosecution in accordance with sections 118(1)(c) and 119 of the 1995 Act.