Appellant: Shead, M McKenzie; John Pryde & Co. SSC

Respondent: Cherry QC, AD; Crown Agent

30 March 2012

Background

[1] The appellant was convicted on 23 December 2009 of four charges in the following terms:

"(001) On 17 November 2007 at the ground under construction to the west of the Clyde Port car park, Broomielaw, Glasgow you FRASER BRIAN SUMMERS did assault N, c/o Strathclyde Police, City Centre Police Office, Glasgow and did strike her on the head with an unknown implement, slap her repeatedly on the head and body, force her to the ground, cover her mouth with your hand, drag her by the hair, remove her clothing, remove your clothing, lie on top of her, touch her on the body, attempt to insert your private member into her hinder parts, throw her to the ground, insert your fingers into her hinder parts, repeatedly call her abusive names and demand that she repeat said names, prevent her escaping, throw her on to a pile of brick and stones, repeatedly force gravel into her mouth, insert your private member into her hinder parts, demand that she perform oral sex on you, force your private member into her mouth causing her to choke, and you did repeatedly rape her, all to her injury;

(002) On 22 November 2008 at the Tunnel, 84 Mitchell Street, Glasgow you FRASER BRIAN SUMMERS did assault A, c/o Strathclyde Police, City Centre Police Office, Glasgow, repeatedly punch her on the face, to her injury;

(003) On 22 November 2008 at the Tunnel, 84 Mitchell Street, Glasgow you FRASER BRIAN SUMMERS did assault S, c/o Strathclyde Police, City Centre Police Office, Glasgow and did punch her on the face;

and

(004) On 18 April 2009 at waste ground at Carrick Street, Glasgow near the Broomielaw you FRASER BRIAN SUMMERS did assault M, c/o Strathclyde Police, City Centre Police Office, Glasgow and did seize hold of her, place your arm around her throat, throw her to the ground, place your hand over her mouth, handle her breasts and private parts, pin her to the ground, remove your clothing, force your private member into her mouth thus causing her to choke, repeatedly call her abusive names and demand that she repeat said names, force her to kneel on the ground, insert your private member into her hinder parts, force her to lie on the ground, insert your fingers into her private parts and rape her and thereafter you did ejaculate onto her face, all to her injury."

Charges 2 and 3 arose out of events which occurred on the one occasion. Conviction on these charges is not the subject of challenge. The appeal is confined to the convictions on charges 1 and 4, both charges of assault and rape, which occurred within 18 months of each other in the same general locality, and in the circumstances of which there are many similarities.

[2] The appellant first came to the attention of the police as a suspect in relation to charges 1 and 4 when he attended voluntarily at a police office on 27 May 2009 following the publication of CCTV camera images taken on 18 April 2009, the date of charge 4, in two newspapers, in one of which there was an associated headline asking "Is this the Glasgow city centre rapist?". The appellant attended the police office to explain that, although he resembled the person in the image, he was not the person shown. After he had been at the police office for some time, he gave a statement to investigating officers which became Crown production 9. He was not cautioned before doing so. Thereafter he was interviewed in connection with the allegation in charge 4. About 12 hours later he was interviewed in connection with the allegation in charge 1. Not surprisingly, having regard to the date of these events, the appellant was not advised of the right to advice from a solicitor at any stage in this process.

[3] At the trial the Advocate depute and senior counsel for the appellant agreed that the evidence relating to the statement and the first interview should be presented as follows:

The evidence of the terms of the voluntary statement Crown production 9 would be adduced by way of summarised leading questions to the police officer who took the voluntary statement as follows:

(a)   The appellant voluntarily attended at the police office in connection with the newspaper coverage of the incident on 18 April 2009 and the photograph on the front page;

(b)  He denied being the person but agreed said image looked similar to him;

(c)   He denied any involvement or knowledge of the incident concerned and repeated those denials in the first police interview.

[4] That course was followed at the trial. In addition, again by agreement between counsel, only the contents of pages 44-58 of an edited version of the transcript of the second interview were placed before the jury. In that extract, after initial denials, the appellant admitted having engaged in sexual activity with the complainer in charge 1, but claimed that it was consensual. At a preliminary hearing on 20 October 2009, about two months before the trial, a special defence of consent was lodged relating to both charge 1 and charge 4. At his trial the appellant gave evidence that sexual activity in both instances occurred with the consent of the complainer.

Submissions

[5] The appellant challenges his convictions on charges 1 and 4 on the ground that the terms of the statement and the interviews were inadmissible and that their admission into evidence rendered his trial unfair, founding on the terms of the judgment of the Supreme Court in Cadder v HM Advocate [2010] UKSC 43, 2011 UKSC 13, 2010 SCCR 951, 2010 SLT 1125. The hearing of the appeal was delayed pending the outcome of references at the instance of the Lord Advocate to the Supreme Court in Ambrose v Harris, M v HM Advocate and HM Advocate v G [2011] UKSC 43, 2011 SCCR 651. Following the judgments of the Supreme Court in these cases, the Crown have conceded that the evidence relating to the statement and the interviews should not have been admitted, but contend that, absent that evidence, there was no real possibility of the jury arriving at a different verdict. The sole remaining question is, therefore, whether applying that test, derived from McInnes v HM Advocate [2010] UKSC 7, 2010 SCCR 286, what occurred amounts to a miscarriage of justice.

[6] Mr Shead, counsel for the appellant, submitted that the result of the admission of the statement and the appellant's responses at interview was materially to strengthen the Crown case and to provide the Crown with evidence by which the appellant's own testimony could be materially undermined, thus adding further illegitimate strength to the Crown case. The very fact that the contents of the statement and the interviews were inconsistent with the appellant's account in evidence had led to the appellant's counsel deciding, in the exercise of her judgment in the course of the trial, to explore with the appellant in his evidence in chief the circumstances in which he had not been honest with the police in his accounts in the statement and interviews. She had also judged it appropriate to make reference in her address to the jury to the inconsistency between what he had said then and his evidence in court. Although the Advocate depute had made no reference to the statement or interviews in his address to the jury, he had opened his cross‑examination of the appellant by exploring the circumstances in which he would lie by reference to the differences between his accounts during the investigation and his evidence in court. At two other points in cross-examination the Advocate depute had returned to the same theme. In Mr Shead's submission the end result was that the normal trial balance had been distorted. The reality of any trial in which the accused gave evidence was that his evidence took on particular significance since, only if the jury could say that they rejected that evidence or that it did not leave them in any reasonable doubt about the guilt of the accused, could they go on to consider convicting him. Had the statement and interviews been excluded, the inconsistencies between what the appellant had said then and what he said at the trial would not have had to be addressed by the appellant's counsel and would not have provided the basis for cross-examination by the Advocate depute. In relation to both charges the appellant acknowledged that he had assaulted the complainer. The context in which the McInnes test fell to be applied was one in which the choice for the jury was confined to the narrow question whether the appellant should be convicted of assault and rape or simply convicted of non‑sexual assault. It could not therefore be said that, had the statement and interviews not featured in the trial, there was no real possibility of a different verdict.

[7] In response the Advocate depute maintained that there was no real possibility of a different verdict because the combination of the evidence of the complainers of similar attacks, independently supported in respect of each charge by the eye-witness evidence of passers by, forensic science evidence and medical evidence, amounted to an overwhelming case against the appellant. In relation to each complainer there was evidence of acute distress, a de recenti claim of having been raped, and DNA samples, injuries and damage, all indicative of a sexual assault of the nature described by each complainer. The circumstances also warranted the application by the jury of the Moorov doctrine of mutual corroboration (Moorov v HM Advocate 1930 JC 68)

Discussion.

[8] The Crown were able to present a case in which each charge was independently corroborated and both could also be seen to form part of a course of criminal conduct. There was no connection between the complainers, and yet they gave accounts which included a number of distinctive similarities. In his report to this court the trial judge outlined the circumstances of the two cases as follows:

"Both N and M were drug users who occasionally worked as prostitutes in what was described in evidence as Glasgow city centre's Red Light District. This is the area very approximately bounded by Central Station to the east, Bothwell Street to the north, Douglas Street to the west and the Broomielaw to the south. According to their evidence, both N and M agreed, on the respective occasions libelled, to provide unspecified sexual services before taking a client who at trial was accepted was the appellant to waste ground. There they were subjected to sudden violent attacks which included oral and anal penetration and rape. There was DNA evidence to link the appellant with each of the complainers. The appellant gave evidence. He admitted having met the complainers on the dates specified and engaging them as prostitutes. However, according to him all sexual activity was consensual and difficulty only arose when he caught each of the complainers attempting to pick his pocket during an act of oral sex. He accepted that he had assaulted N by slapping her and punching her repeatedly, dragging her by the hair and throwing her to the ground. He accepted that he had called her abusive names. He accepted, as N had explained in her evidence, that she had run away from him. As far as M was concerned, he accepted that he had pushed her to the ground and called her abusive names. However, according to him, once M started to cry he apologised for shouting at her and comforted her."

[9] The DNA evidence which linked the appellant to N demonstrated that he had had sexual contact with her, resulting in his semen being deposited into her vagina. His blood was also on her clothing. She gave evidence that the appellant had put his hand over her mouth, dragged her by the hair and assaulted her, and that he had forced stones into her mouth. There was medical evidence that grit was found far back in the left hand side of the complainer's mouth, and that her vulva and pubic area were ingrained with dust and dirt. When she ran off, she was observed in an obviously distressed state and apparently naked from the waist down, in the carriageway of the Broomielaw, by a taxi driver and his passenger. The passenger described N as "very distressed...shaking and holding her clothing about her". She said in terms: "I have just been raped". The passenger went into the area of the car park adjacent to the construction site where the complainer said she had just been attacked, and saw the figure of a man. She challenged him with having raped the complainer. He denied it, but moved away. A police officer described the complainer's face as being dirty and her top lip as swollen. The taxi driver gave evidence of stones and grit on her when she was sitting in the taxi. In addition to the grit inside her mouth, medical examination revealed that her whole vulva and pubic area was dirty, there was redness to the vulva, the vulva was covered in mud, dirt and grit, and there was grit inside in the vaginal canal. The examining doctor, Dr Groom, who had significant experience of examining prostitutes, had never before found grit in the vagina. Other injuries on the complainer included multiple abrasions to the left forearm, pressure marks to the wrists, bleeding to the right arm and elbow, bruising of the right arm, abrasions on both hands, light superficial scratches along the wrist, abrasions to the upper back, and grazing to the buttocks.

[10] The evidence of the complainer on charge 4, M and the independent supporting evidence demonstrate that she was subjected to a similar attack in similar circumstances. The similarities included digital penetration, anal penetration, vaginal penetration from the rear, and forcing of the private member into her mouth causing her to choke. M, like N, spoke of being required to repeat abusive names that the appellant called her. She also, like N, spoke of her mouth being covered and being forced to the ground. The other evidence again came from a number of independent sources. The findings on medical examination are striking. Grit and dirt and multiple small particles of black debris were found in her pubic area. There were areas of redness at the very top of the groin area and black particles of debris at the complainer's anus. A bruise to the inside of her left thigh was consistent with forced intercourse, and was difficult to explain by a fall. DNA evidence demonstrated sexual contact between the complainer and the appellant. He had ejaculated onto her face and semen had been transferred onto her vulva and lower vaginal area. There was also evidence of sperm on her vest. A taxi driver saw what he took to be a couple standing at the corner of Argyle Street and James Watt Street. The man kissed the woman, said "I'll be back" and crossed James Watt Street. M immediately started screaming that she had been raped. Her condition was described as "hysterical". The taxi driver tried to follow the man with his taxi. He saw him approach another woman whom he knew to be a prostitute. He shouted a warning to her. The man ran off and succeeded in eluding him. The taxi driver reported what he had seen immediately to a police officer on foot patrol on Argyle Street. The officer described M as being "in a bad state, crying and screaming...dishevelled, trousers unbuttoned, jacket lying lop-sided on her body...extremely agitated...crying and sobbing". Medical examination also revealed two linear abrasions on the back of her left shoulder, a swollen left upper eyelid, and bruising to the lower back and to the left thigh and knee.

[11] Statements given to the police by both complainers were available to defence counsel. The complainers are described by the trial judge in his report as being "skilfully cross-examined by Miss McMenamin QC, who appeared for the appellant, in large part on the basis of inconsistencies as between their evidence and their police statements". In the case of the complainer on charge 1, the trial judge explains that much was made of the fact that she had initially not admitted to the police that she had been working as a prostitute that night, preferring in her first statement to explain her contact with the appellant as relating to drug taking. It was put to both complainers that their complaints were made because they had been caught attempting to steal. It is clear that the jury accepted the accounts given by both complainers. They could not convict on either charge unless they accepted the evidence of the complainer on that charge.

[12] In addition to the material we have already referred to, Miss McMenamin also had available to her, as a basis for cross‑examination, the account of events that she knew the appellant would give in evidence. In our opinion the non-availability of the statement and police interviews would not have led Miss McMenamin to approach cross-examination of the complainers in a materially different way. In spite of there being no direct link between the complainers, they gave accounts of similar attacks upon them. The pictures they presented to the independent witnesses after the event were also remarkably similar, including their respective states of distress and the fact that each complained immediately at the first opportunity of having been raped. In addition the evidence of the presence of grit and stones in the mouth and vulva of the complainer on charge 1 and on the pubic area and anus of the complainer on charge 4 provides compelling evidence of an attack on each of the complainers of a nature quite different from that admitted by the appellant. In presenting his case in his address to the jury the Advocate depute nailed his colours to the mast of the compelling nature of the evidence led by the Crown and made no reference to the statement or the interviews.

[13] At a number of points in the course of his evidence the appellant displayed poor recollection of events which he attributed to the excessive consumption of alcohol. Although he admitted assaulting both complainers, he was unable to account for a number of their injuries. More significantly he was unable to explain the dirt and grit in the area of N's private parts and denied that she was naked from the waist down. He also denied putting stones and gravel in her mouth. He was unable to explain the grit and dirt around the private parts of M and maintained that her trousers were not down at the point when she did land on her bottom on the ground. In the case of both complainers he maintained that no part of the sexual activity had occurred when the complainers were on the ground as they said, but when they were on their feet, bent over, and he penetrated them from the rear. The absence of the evidence of the statement and the interviews would have made no difference to these aspects of the appellant's evidence.

Decision

[14] In these circumstances, there is in our opinion no real possibility that the jury would have reached a different verdict had evidence relating to the statement and interviews not been admitted. We therefore refuse the appeal.