APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Hardie Lord Abernethy	[2011] HCJAC 112 Appeal No: XC348/10 OPINION OF THE LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION by G M Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

For the appellant: Jackson QC, Miss Mitchell; J P Mowberry, Solicitor, Glasgow

For the Crown: Prentice QC (sol adv), AD; Crown Agent

10 November 2011

Introduction

[1] On 8 April 2010 at Glasgow High Court the appellant was convicted of the following charge:

"On 2 or 3 May 2008 at [locus], you GM did assault [complainer] ... and did while she was asleep or under the influence of alcohol and incapable of giving or withholding consent, remove her clothing and jewellery, repeatedly kiss her, lie on top of her and after she had awoken, place your hand over her mouth and did rape her."

[2] On 21 July 2010 the appellant appealed against conviction. The first sift judge commented that whether or not the appeal was arguable would depend upon the then impending decision of the Supreme Court in Cadder v HM Adv (2010 SLT 1125). He granted leave to appeal in order to preserve the appellant's position.

[3] The Crown had relied at the trial on the appellant's police interview. As was the practice in pre-Cadder days, the appellant had been interviewed without having had the benefit of legal advice. After the decision in Cadder was issued, it appeared that the decision affected this appeal.

[4] Thereafter this court gave its decision in the appeals of Jude and Others v HM Adv (2011 SLT 722) in relation to arguments by the Crown that the Cadder principle did not apply where the accused had waived his right to legal advice or where section 118 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) applied because the evidence of the interview had been led without objection. This court found against the Crown on these points. Those cases have been appealed to the Supreme Court.

[5] By letter dated 28 July 2011 the Crown gave notice that in this appeal it no longer insisted in its argument on section 118; but that it made no concession on the issue of waiver or its applicability in this case. Nevertheless, the Crown proposed that the hearing in this appeal should go ahead on two questions, namely whether, without the evidence of the police interview, there would have been (a) a legal sufficiency of evidence in proof that intercourse took place, and (b) the possibility of a different verdict. At a procedural hearing on 7 September 2011 this court ordered that the appeal should proceed to a hearing before the decision of the Supreme Court was issued, but only in relation to sufficiency of evidence. Since the court's order was framed in response to the Crown's letter, it is clear that the court contemplated that the issue of sufficiency would also comprehend the related question of the possibility of a different verdict. Both parties conducted the hearing on that understanding.

The evidence at the trial

[6] The complainer said that she had gone to the appellant's flat with her then boyfriend CL, who was a friend of the appellant. The appellant, CL and the complainer were drinking. At some point CL felt unwell and left. The complainer said that she too intended to leave at that point but that when she went upstairs for her bag she was feeling funny. The next thing that she remembered was wakening up with the appellant on top of her. He then had sexual intercourse with her. She said to him "What are you doing? Get off me." He put his hands over her mouth and said to her "Be quiet." During the incident she wriggled about but could not get away from the appellant. After the incident was over the appellant said to her "Better not tell anybody about this" and "Don't tell [CL] about this."

[7] The complainer said that when she left the appellant's flat she became disoriented. At first, she could not find her way back to her boyfriend's house. She telephoned her best friend LC. She eventually found her way back to her boyfriend's house. She did not report the matter to the police.

[8] LC said that she was wakened by the telephone between 2am and 3am. She played a message on her answering machine and recognised the complainer's voice. When she made contact with the complainer, the complainer sounded hysterical. It was LC who reported the matter to the police. The answering machine message was played to the jury.

[9] There was also evidence from CL that in the early hours of the morning the appellant telephoned him and that they had a discussion about what had happened between him and the complainer. CL's exact words were these:

"Yeah, he told me. He, he told me he had slept with her, eh, and he was, and he was sorry, yeah."

[10] Counsel for the defence did not cross-examine CL about the telephone call. That is understandable in light of the appellant's police statement.

[11] The Crown relied also on the fact that in his police interview the appellant admitted that he had had intercourse with the complainer but maintained that the intercourse was consensual.

[12] The appellant did not give evidence. He relied on his police statement in support of the defence of consent.

[13] In her speech the advocate depute dealt with the evidence of the complainer's distress. She said that it might be suggested that the jury could not rely on that evidence because of the evidence given by CL. If when considering his evidence alongside the evidence of the complainer, LC and the answering machine message, they were to decide that CL was not telling the truth and had chosen to stand by his best friend, it would be open to them to reject it. She then discussed CL's first statement to the police. She said that the jury might want to consider the fact that after the appellant had been interviewed by the police, CL was spoken to again and on this occasion provided further information to the effect that the complainer had told him that she had sex willingly with the appellant. She then said -

"And, of course, you heard evidence from [CL] that prior to giving these statements to the police he had spoken to the accused."

The trial judge's charge

[14] The trial judge directed the jury on the necessity for corroboration, on the question of hearsay evidence and in particular on the evidence of the complainer and her de recenti statement to the police and on the nature and significance of the appellant's mixed statement to the police. He gave no direction as to the evidential significance of the statement of the appellant referred to by CL.

The position of the Crown at the appeal

[15] The Crown accepted that the evidence of the appellant's police interview could not be relied on by way of corroboration of the complainer. It opposed the appeal only on the basis that there was other evidence sufficient to provide a corroborated case against the appellant. I understood the Crown to be retaining its opposition on the ground of waiver on the understanding that that question would be considered after the Supreme Court issued its judgment in the cases of Jude and Others (supra).

The issues in the appeal

[16] The appeal was argued on two questions: namely whether, without the evidence of the police interview, (1) there was sufficient evidence to warrant the conviction; and (2) there would have been a real possibility of a different verdict.

Submissions for the appellant

[17] Counsel for the appellant submitted that the only possible corroboration of the complainer was to be found in the words of CL that I have quoted. He argued that the appellant's statement to CL the he had "slept with" the complainer did not necessarily mean that he had had sexual intercourse with her. While he accepted that one of the meanings of the expression "sleep with " was "to have intercourse with," the meaning that the appellant had intended was a matter of speculation.

[18] Counsel for the appellant also submitted that if he failed in his argument on corroboration the court should nonetheless allow the appeal because it was impossible to say what the course of trial would have been if the Crown had not led the evidence of the interview. Since the trial judge expressly directed the jury on the evidence of the complainer and of the appellant's police statement, he impliedly excluded from their consideration the statement spoken to by CL. The Crown could not reconstruct a case that was never put to the jury for its consideration.

Submissions for the Crown

[19] The advocate depute submitted that the appellant's comment to CL could bear the meaning that the appellant had had intercourse with the complainer. Therefore the requirement of corroboration was met, whatever other interpretations of those words might have been possible (Fox v HM Adv 1998 JC 94, Lord Justice General Rodger at p 100; Lord Gill at p 124; Munro v HM Adv, XC 271/09, 3 September 2010, at para [7]). The fact that intercourse took place was not an issue at the trial.

[20] The advocate depute submitted that although the appellant did not give evidence, his position was squarely before the jury in the context of the interview. The jury were entitled to rely on evidence and on an approach to the evidence that was not relied on by the Crown (Johnston v HM Adv 2009 SCCR 518). If there was a proper basis in evidence for the verdict then it was open to the jury to convict, whatever the Crown's interpretation of the evidence (Ferguson v HM Adv). By reason of CL's evidence, there was no real possibility that there would have been a different verdict if the evidence of the police interview had been excluded (Cadder v HM Adv, supra, at para 64).

Conclusions

Sufficiency of evidence

[21] In my opinion the submission for the appellant is misconceived. The question is not whether the words "slept with" are capable of more than one meaning. It is whether one of the meanings of which they are capable is that sexual intercourse took place. It is conceded by counsel for the appellant that "slept with" is capable of that interpretation. That, in my opinion, establishes that even without the evidence of the police interview there was a formal sufficiency of evidence (Fox v HM Adv, supra).

Was there a real possibility of a different verdict if evidence of the police interview had not been led?

[22] The Crown relied upon the evidence of the complainer, the evidence of de recenti distress and the evidence of the police interview. The Crown accepts that in her speech to the jury the advocate depute did not found upon that evidence of CL about the telephone call from the appellant. The trial judge, rightly in my opinion, did not think it necessary to give the jury any direction as to the significance of CL's evidence on that point.

[23] In Cadder v HM Adv (supra) the Supreme Court held that the exclusion of evidence of a police interview need not be fatal to a conviction if there was other evidence that was sufficient to warrant a conviction (ibid, para 64). In my view, that principle can be applied straightforwardly if the jury were directed as to the other evidence that could provide the necessary sufficiency: But in this case the evidence now relied on by the Crown was not relied on at the trial and was not mentioned in the judge's charge.

[24] In Fraser v HM Adv (2011 SLT 515, at para 38) Lord Hope observed that it is on the case as presented at the trial that the court must concentrate, rather than the case as it might have been presented. It is not for the appellate court to speculate as to what the case might have been, much less how the jury would have reacted to it. His Lordship adopted the comment of this court in McCreight v HM Adv (2010 SCCR 77) that it is not the court's task to decide what the outcome of the trial would have been if the trial had been conducted on an entirely different basis. In Fraser v HM Adv, the appeal against conviction was based on the admitted failure of the Crown to disclose certain evidence. The court assessed the consequences of the non-disclosure on the assumption that if the undisclosed evidence had been available at the time of the trial, the Crown case would have been conducted differently. This court refused the appeal on the view that the non-disclosure of the evidence, seen in the context of certain other evidence, did not result in a miscarriage of justice. The Supreme Court took the view that that approach suggested that the trial that actually happened could be regarded as having been unfair because there was a real possibility that, taking all the circumstances of the trial into account, the jury would have arrived at a different verdict (at para 37). It concluded that this court had considered the case on the basis that the undisclosed evidence was indicative of the appellant's guilt for completely different reasons from those advanced by the Crown at the trial (at para 38).

[25] In this case the appeal relates to evidence that the Crown led rather than omitted; but in my view a similar principle applies. The Crown now invites us to uphold the conviction on a different basis from that on which it presented its case at the trial.

[26] The test that we have to apply is whether there is a real possibility that the jury would have reached a different verdict if the evidence of the police interview had not been led. Looking at the whole evidence on that assumption, I am satisfied that there is such a possibility.

Disposal

[27] If the grounds that we are now considering were the only grounds of appeal, the appeal, in my view, would succeed. However there remains the Crown plea of waiver. I propose to your Lordships that we continue the appeal for a hearing on that point to be held after the Supreme Court gives its decision in Jude and Others (supra).

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Hardie Lord Abernethy	[2011] HCJAC 112 Appeal No: XC348/10 OPINION OF LORD HARDIE in APPEAL AGAINST CONVICTION by G M Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

For the appellant: Jackson QC, Miss Mitchell; J P Mowberry, Solicitor, Glasgow

For the Crown: Prentice QC (sol adv), AD; Crown Agent

10 November 2011

[28] For the reasons given by your Lordship in the chair, I agree that the disposal of this appeal should be as proposed by your Lordship.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Hardie Lord Abernethy	[2011] HCJAC 112 Appeal No: XC348/10 OPINION OF LORD ABERNETHY in APPEAL AGAINST CONVICTION by G M Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

For the appellant: Jackson QC, Miss Mitchell; J P Mowberry, Solicitor, Glasgow

For the Crown: Prentice QC (sol adv), AD; Crown Agent

10 November 2011

[29] For the reasons given by your Lordship in the chair, I also agree that the disposal of this appeal should be as proposed by your Lordship.