APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Hardie Lord Bonomy	[2012] HCJAC 65 Appeal No: XC562/08 OPINION OF THE COURT delivered by LORD HARDIE in APPEAL AGAINST CONVICTION AND SENTENCE by R.J. Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead, Mason; Drummond Miller, Edinburgh

Respondent: Fairley AD; Crown Agent

18 May 2012

Introduction

[1] On 27 May 2008 the appellant appeared for trial at Aberdeen High Court in respect of an indictment containing seven charges, six of which alleged serious sexual assaults upon the same complainer, X, and the other charge alleged a breach of the peace involving secreting a mobile phone in X's bathroom with the intention of taking indecent photographs of her. At the conclusion of the evidence the Advocate depute withdrew the libel in respect of each of charges 1, 2, 4 and 5 and the appellant was acquitted of these charges. The remaining charges which were left for consideration of the jury were in the following terms:

"(3) On various occasions between 27 May 2002 and 30 November 2007, both dates inclusive, [at two specified addresses] and elsewhere in Edinburgh and East Lothian you did assault X and did send her inappropriate and indecent text messages, make inappropriate and indecent comments to her, repeatedly place your hand on her buttocks, lie beside her in bed, repeatedly attempt to remove her clothing, put your arms round her, kiss her on the face and neck, repeatedly handle her chest, seize her by the throat, repeatedly remove her trousers and underwear, repeatedly rub your private member in her presence, repeatedly rub your private member against her body and repeatedly handle her private parts;

(6)         On 19 November 2007, at an unclassified road near Fa'side Castle, Tranent, East Lothian, and elsewhere in East Lothian, within your motor vehicle registered number G67 PES, you did assault X and did follow her, threaten her with violence, demand that she get into your car, demand that she remove her jacket, repeatedly rub your private member in her presence, demand that she get into the back seat of said motor vehicle, demand that she kiss you on the mouth, attempt to kiss her on the mouth, strike her head on a window, repeatedly strike her on the head, repeatedly seize her by the throat and compress same, lie on top of her, pull up her top, handle her chest, kiss her chest, repeatedly threaten to kill her, pull down her trousers, rip off her underwear, unbutton your trousers and expose your private member, demand that she handle your private member, repeatedly drag her along the ground, force her to bend over the bonnet of said motor vehicle, handle her private parts, insert your fingers into her private parts, handle your private member in her presence, demand that she place your private member in her mouth, force her to handle your private member, repeatedly threaten to rape her, demand that she place your private member in her private parts, seize her by the hair and repeatedly force your private member into her mouth to the emission of semen and all this you did with intent to rape her;

and

(7)         On 30 November 2007 at Lewisfield Park, Newbigging, Musselburgh, East Lothian, you did assault X and did place your hand on her buttocks, place your arms around her, demand that she kiss you, seize her by the body, push her against a row of trees and a wall, repeatedly threaten to kill her, handle her chest underneath her clothing, lift up her dress and place your hands under her tights, handle her private parts over her underwear, repeatedly threaten to rape her, force her to rub your private member, pull down your trousers and underwear, push her down on the ground, demand that she placed (sic) your private member in her mouth, rub your private member against her face, seize her by the hair and force your private member into her mouth and demand that she place your private member into her private parts, all with intent to rape her."

On 5 June 2008 the jury unanimously convicted the appellant of each of charges 3, 6 and 7. On 20 August 2008 the appellant was sentenced to an extended sentence of 11 years in cumulo comprising a custodial term of 8 years and an extension period of 3 years.

Procedural history of the appeal
[2] On 28 August 2008 the appellant lodged a notice of intention to appeal. On 17 February 2009 the appeal was deemed to have been abandoned because a note of appeal had not been lodged within the relevant time (Criminal Procedure (Scotland) Act 1995 ["the Act"] section 110(1)). On 5 October 2010 the appellant lodged an application for extension of time in terms of section 111(2) of the Act along with a note of appeal. The court granted the extension of time and the note of appeal was received on 6 October 2010.

[3] The note of appeal contained eight grounds of appeal. On 26 October 2010 leave to appeal was granted only in respect of grounds 1, 2 and 8. Grounds 1 and 2 related to the admission in evidence of the two police interviews of the appellant and ground 8 related to sentence. On 26 November 2010 leave was also granted in relation to ground 5 which concerned the admission of evidence of a text message. On 7 January 2011 the appellant sought leave to amend the note of appeal to add an additional ground of appeal concerning the absence of reasons for the jury's verdict but that application was refused.

[4] Between 5 and 7 April 2011 the appeal court heard submissions in respect of preliminary issues raised by the Crown relating to the question of waiver and time‑bar. On 11 May 2011 the court repelled the Crown submissions in relation to each of the following issues: the applicability of section 118(8) of the Act; waiver; the appellant's failure to object at trial to evidence concerning the police interviews of the appellant and section 100(3B) of the Scotland Act 1998 ("the 1998 Act") (Jude v HMA 2011 J.C. 88). On 15 June 2011 the court granted the Crown's application for leave to appeal to the Supreme Court in relation to the question of waiver and the application of section 100(3B) of the 1998 Act.

[5] The appellant's appeal had been conjoined with the appeals of two other appellants which raised similar issues. On 11 and 12 October 2011 the United Kingdom Supreme Court heard the conjoined appeals. Before that court the Lord Advocate restricted his submissions in this appeal to the application of section 100(3B) of the 1998 Act and abandoned his case based upon alleged waiver of the appellant to the entitlement of a solicitor prior to his police interview. On 23 November 2011 the United Kingdom Supreme Court refused the appeal at the instance of the Lord Advocate (Jude v HMA 2012 SCCR 88).

Grounds of appeal

[6] Against that procedural background grounds of appeal 1, 2, 5 and 8 had to be determined by this court. As it had been conceded at a procedural hearing on 23 December 2011 that there was no longer any need for this appeal to be heard along with the other appeals, with which it had been conjoined, the appeal hearing on 28 March 2012 was confined to this case. In the course of that latter hearing, counsel for the appellant advised the court that the appellant no longer insisted upon his appeal against sentence (ground 8). In these circumstances the submissions were restricted to the remaining three grounds of appeal which were in the following terms:

"1. At the appellant's trial the Crown led evidence of two interviews between the police and the appellant which took place on 2 September 2007 and 28 December 2007 respectively. The appellant did not have access to legal representation before or during the police interviews despite having requested the attendance of a solicitor. The evidence of the appellant's police interviews was relied on by the Crown both as evidence which tended to incriminate him and also to demonstrate that he had changed his account of his involvement. It is submitted that the use of this evidence rendered the appellant's trial unfair in the circumstances of this case. Reference is made to the decision of the Grand Chamber of ECHR in the case of Salduz v Turkey (36391/02) (November 27, 2008). In relying on that evidence and seeking a conviction the Lord Advocate, through her depute, was acting incompatibly with the appellant's rights under Article 6(3)(c) & 6(1). Such an Act was ultra vires. Reference is made to section 57(2) of the Scotland Act 1998.

2. The trial judge ought to have directed the jury to disregard the evidence of the police interviews in so far as it was relied upon by the Crown. Reference is made to the directions which were given at p6 line 11-p9 line 10 and p27, lines 3-15. These directions did not act as any safeguard on the use to which the Advocate depute had sought to put the evidence.

5. The learned trial judge erred in repelling an objection to the evidence of a text message alleged to have been sent by the appellant to Shaun Cumming. Properly understood the text message was evidence of a crime not charged and therefore inadmissible. Reference is made the case of Nelson v HMA 1994 JC 94 at p104 [then follows a quotation commencing with the last paragraph on page 103 (not 104) and ending with the paragraph which concludes at 104 D-E]".

Submissions on behalf of the appellant

[7] Mr Shead submitted that the Crown had violated the appellant's rights under Article 6 of the European Convention on Human Rights ("the Convention") by leading evidence of the appellant's police interviews and relying upon that evidence. He acknowledged that to be insufficient on its own to justify the quashing of the conviction and appreciated that he had to satisfy the court either that there was insufficient evidence for a conviction without the evidence of the police interviews or that, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict if they had not had the evidence of the police interviews (Cadder v HMA 2011 SC (UKSC) 13). Adopting that approach counsel submitted that the first issue for the court was, whether as regards each charge of which the appellant had been convicted, there had been a sufficiency of evidence at the conclusion of the Crown case to enable the jury to convict the appellant, if one excluded the evidence of the police interviews of the appellant. If the court answered that question in the negative in respect of any of the charges, the appeal must succeed as regards that charge and the conviction should be quashed to that extent. However, if the court concluded that there had been such a sufficiency of evidence, the court then had to consider whether, notwithstanding such sufficiency, there was a real possibility that the jury would have arrived at a different verdict as regards any of the charges if they had not had the evidence of the police interviews. In relation to the question of sufficiency of evidence at the conclusion of the Crown case, excluding the evidence of the police interviews, Mr Shead accepted that there was such a sufficiency in respect of charges 3 and 7. However, he submitted that charge 6 was in a different category. While there was sufficient evidence to corroborate the complainer's evidence about the commission of the crime libelled in charge 6, Mr Shead submitted that there was insufficient evidence to corroborate the complainer's identification of the appellant as the perpetrator of the offence.

[8] Mr Shead's second submission was that, in any event, the appeal ought to be allowed because, as regards charges 3 and 7 and also charge 6, if he failed in his primary submission in respect of that charge, there was a real possibility that the jury would have reached a different verdict in relation to each charge. In her address to the jury the Advocate depute had relied upon the police interviews of the appellant including passages in which he admitted seeing the complainer naked, obtaining leggings from her and wearing them, being present alone with the complainer on 19 November 2007 at Fa'side Castle and striking her bare bottom on that occasion as well as retrieving items of the complainer's clothing from the locus specified in charge 7. In addition, the Advocate depute had relied upon passages from the police interviews and the video recording of those interviews to undermine the appellant's credibility. If the evidence of the appellant's police interviews had been excluded, the strength of the Crown case would have been undermined. Moreover in his charge to the jury and in his report to this court the trial judge had highlighted unsatisfactory aspects of the complainer's evidence. Counsel also submitted that, as the CD of the interview had been played to the jury, the jury had seen and heard the appellant and might have been unimpressed by his demeanour. As a result the approach adopted by the appellant's solicitor advocate might have been different from that which he would have adopted if the evidence of the interviews had not been led. The criticisms of the complainer's evidence could have acquired greater significance if the jury had not seen and heard the appellant's police interviews. In all the circumstances if the evidence of the police interviews had not been available to the jury, there was a real possibility that the jury would have reached a different verdict.

[9] Mr Shead submitted that the second ground of appeal dealt with a separate but related point to the first ground. The second ground of appeal was concerned with an alleged misdirection of the jury by the trial judge in respect that he had failed to direct the jury to disregard the evidence of the police interviews. In advancing this ground of appeal Mr Shead very properly referred to the decision of the court in Crozier v HMA [2011] HCJAC 95 where the court rejected an identical submission (para [16]). Nevertheless Mr Shead stated that he maintained this ground of appeal as he was aware that there were a number of cases at avizandum where the same argument had been advanced and he wished to preserve the appellant's position in case the court reached a different conclusion in any of these cases.

[10] As regards the final ground of appeal (ground 5) Mr Shead acknowledged that the point was a narrow one. The circumstances were that the Crown sought to prove that the appellant had sent an indecent text message from the complainer's mobile telephone in the early hours of 1 December 2007 to a male friend of the complainer. This evidence was relevant to the proof of charge 7. Counsel for the appellant accepted that the indictment had given notice of the appellant's alleged propensity to send indecent texts to the complainer but no such notice was given in respect of this third party. In view of the content of that text message, fair notice required that the separate crime alleged should have been libelled as a separate charge or otherwise referred to in the indictment. The evidence had tended to show that the accused was of bad character and this crime was different in time, place and character from the crime charged. In these circumstances the appellant was entitled to fair notice (Nelson v HMA cit.sup..) Mr Shead accepted that some evidence could have been led without objection concerning the sending of the text message to the third party but the evidence about the content of the message was objectionable. Nevertheless he acknowledged that the court's observations in Beggs v HMA 2010 SCCR 681 rendered this a narrow point.

Submissions on behalf of the Crown
[11] The advocate depute conceded that the appellant did not have access to legal advice prior to or during either of the police interviews relied upon at his trial. However, as had been acknowledged by Mr Shead, the court had to consider whether there was sufficient evidence for a conviction without the evidence of the interviews and whether there was a real possibility that the jury would have arrived at a different verdict if they had not had the evidence of the interviews before them (Cadder cit. sup.; McInnes v HMA 2010 SC (UKSC) 28; Hay v HMA 2011 JC 173. Before referring to the evidence upon which the Crown invited the court to conclude that, absent the police interviews, there was a sufficiency of evidence in respect of each charge at the conclusion of the Crown case and further that there was no reasonable prospect of the jury returning a different verdict, the advocate depute advised us that when the case called for trial there was an outstanding issue relating to an application under section 275 of the Act. Whereas at a preliminary hearing the court had granted permission to the defence to lead evidence about two specific matters, two further matters in the application had been reserved for the trial judge. The trial judge had expressed concerns that if the transcripts of the police interviews were to be edited to reflect the section 275 application in its original form, on one view this would result in unfairness to the appellant as the jury would not have the appellant's full and exculpatory position. Accordingly a fresh application was drafted to reflect a more balanced and fair view of the appellant's position. Although it was drafted by the trial advocate depute, the draft was prepared in consultation with the appellant's solicitor advocate. The reason advanced in support of the relevance of the proposed questioning was as follows:

"The [appellant] denies any inappropriate behaviour of a sexual nature towards ...the complainer. The [appellant's] position is that any sexual harassment or inappropriate sexual behaviour was directed to him from the complainer".

[12] The advocate depute submitted that there was a sufficiency of evidence in respect of each of the three charges without the evidence of the police interviews. Although there had been significant criticisms of the complainer's evidence by the solicitor advocate representing the appellant at his trial, the unanimous verdict of the jury indicated that they had accepted the essentials of her evidence in support of each of the charges. As regards charge 3, the complainer's evidence was corroborated by her mother who testified that in 2007, when the complainer was 21, she had seen the complainer and the appellant in bed on several occasions and on such occasions the complainer always looked scared. On one occasion she returned to the house to find the appellant and the complainer in bed and the complainer was crying. From 2007 the complainer habitually wore jeans and polo necks when she was in bed. The appellant used his mobile telephone in the bathroom and the witness saw numerous calls and texts to the complainer on his phone. DC McRae and Derek Morris, a mobile phone analyst, gave evidence about sexually explicit text messages from the appellant's phone to the complainer's phone and of multiple indecent images, in the form of a video of the complainer, on the appellant's telephone.

[13] In relation to charge 6 the complainer testified that in the course of the attack upon her, the appellant ripped her bra and ripped off her orange boxer shorts, as well as pulling two buttons from her black top. The damage to the complainer's bra was identified in evidence by the complainer, her mother and DC McRae. The complainer's account of the boxer shorts being torn from her in the appellant's car was supported by the agreed evidence that the appellant was the registered owner of the Mercedes motor car reg no G67 PES from 7 September 2007 and that he remained the owner of that motor car as at 2 December 2007. It was also a matter of agreement that on 6 December 2007 police officers conducted a search of that motor vehicle under authority of a search warrant and recovered the complainer's boxer shorts from underneath the driver's seat of the car and two buttons from inside the car. Scientific examination of the complainer's garments was undertaken by Simon Telford and his findings were contained within a report, in which he referred to a 130 mm tear in the left front and separated seam in the centre back waist band of the boxer shorts recovered from the appellant's car. Both of these pieces of damage were fresh damage and the witness concluded:

"In our opinion the damage found on the boxer shorts appeared fresh and supports the view that the boxer shorts have been forcefully torn".

In relation to the two buttons found in the rear of the appellant's car, as confirmed by the evidence of DC McRae, the forensic report concluded:

"In our opinion the damage found on the black top belonging to 'X' is consistent with two buttons having been pulled from the shirt causing the fabric to tear. The two buttons recovered from [the appellant's vehicle] were found to be similar in appearance to the two buttons that remained on the black top... In our opinion these findings support the view that the two buttons recovered from the above vehicle have been pulled off the black top of 'X'.

The complainer's mother gave evidence about the complainer's distress when she returned home. She described her as "shaking, white and couldn't speak". She also referred to the complainer's appearance and said that "[it] looked like someone had raped my daughter, taking her down a vennel and battered her. That's just the way she looked". She also referred to the appellant arriving at the house about 20 mins later and telling her that he had been working. The witness was suspicious of that explanation because the appellant worked on a building site and it was raining heavily that day but he was not wet. The complainer's mother was not cross-examined about any of the points mentioned above.

[14] In relation to charge 7, the complainer's evidence was corroborated by various pieces of evidence: the appellant's DNA was present on the inside front of the complainer's tights consistent with the complainer's evidence that he put his hand down her tights; a 45mm tear was present in the upper area of the complainer's tights and there was mud staining in the knee area, both being consistent with and supportive of the complainer's account of the attack upon her; a sock was found by the complainer's mother in the appellant's bed on 1 December 2007 inside which the complainer's SIM card and mobile phone battery were found by police; the appellant's DNA was on the sock, consistent with it having been worn by him (this supported the evidence of the complainer of having left her phone as she fled from the locus and also related to the evidence of Shaun Cumming about the receipt of an aggressive and sexually explicit text message from that phone at 3.18am on 1 December 2007); clothing and property belonging to the complainer, which she said she had last seen as she fled from the locus on the night of the attack upon her, were recovered from a covered lock-up near to the appellant's home on 2 December 2007; Shaun Cumming received a sexually explicit text message from the complainer's phone in the early hours of 1 December 2007 and he had not received a text of that nature from the complainer before; evidence of Ruth Connachan that the complainer jumped out in front of her car in a distressed state as the witness was driving at a point about 100 yards from the locus and that the complainer hid in the footwell of the car and became "really distressed" when she thought she saw the attacker - an older man; Ruth Connachan also noted that the complainer was not wearing any shoes; Kevin Andrew Fitzimmons, a park warden at Lewisvale Park, found the complainer's shoes on 4 December 2007 behind some trees in the park; evidence of the complainer's mother about the complainer's de recenti distress when she was brought home by the witness Connachan just after 10pm on 30 November 2007 and about the appellant arriving at the house about 15 to 20 mins later and asking if the complainer had returned home from work; she described the appellant as "fidgety" and "jumpy" and said that he had taken the dog for a walk at 3am having not done so for months previously; evidence of Sarah Young a work colleague of the complainer who testified that the complainer had telephoned her on 1 December to say that she could not come to work and that the appellant had phoned her later that morning at the shop premises where she worked to ask if the complainer was there and later that day he had telephoned her on her mobile number (which she had not given him) to ask if she had seen the complainer. The advocate depute submitted that the above summary of evidence clearly indicated that there was a sufficiency of evidence as regards each of the three charges.

[15] In relation to the question whether, absent the evidence of the police interviews of the appellant, there was a real possibility of the jury reaching a different verdict, it was relevant to consider the circumstances in which the evidence of the interviews came to be led. As narrated above, parts of the interviews were allowed to be led following the granting of the section 275 application. It was an important part of the defence case that any inappropriate behaviour involving the complainer and the appellant had been instigated by the complainer. It was relevant to consider the use which was made of the interviews at the trial by each of the advocate depute and the solicitor advocate representing the appellant. Where the advocate depute commented in her address to the jury about passages in the appellant's interviews, they were matters for which there was ample other evidence and, in any event, the passages were exculpatory of the appellant. Those exculpatory explanations had been "shaped and encouraged" by the solicitor advocate at the trial by requesting that they be included in the section 275 application to give full effect to the appellant's defence. The use made by the Crown of these passages had been to ask the jury whether these explanations caused them to have a reasonable doubt about the complainer's evidence. In the course of his address to the jury, the solicitor advocate representing the appellant used the interviews to show that the appellant was being truthful. In all the circumstances there was no real possibility of the jury reaching a different verdict in this case if the evidence of the police interviews had not been led.

[16] As regards the second ground of appeal, the advocate depute submitted that this issue had been determined by the court in Crozier. Moreover the case of David McKenzie v HMA (XC202/10) (unreported opinion dated 17 January 2012) had strong similarities to the present case. In that case, as in the present case, the appellant had not given evidence, the appellant's representative had relied upon the content of the interview in his speech to the jury and there was no indication that the exclusion of the interview would have been beneficial to the appellant (para [11]).

[17] In inviting the court to reject the fifth ground of appeal, the advocate depute submitted that the Crown may properly lead any evidence relevant to the proof of a crime charged, even although that evidence showed or tended to show the commission of another crime not charged unless fair notice required that that other crime should be charged or otherwise referred to expressly in the indictment. Such notice will be required if the evidence sought to be led tended to show that the appellant was of bad character or where the other crime was so different in time, place or character from the crime charged that the libel did not give fair notice to the appellant that evidence relating to the other crime may be led, or if it was the intention, as proof of the crime charged, to establish that the appellant was in fact guilty of that other crime (Nelson v HMA cit.sup.). The test was one of relevance to the Crown case rather than one of necessity (Beggs v HMA cit.sup.). The principle underlying the decision in Nelson was that of fair notice to the defence (Mitchell v HMA 2008 SCCR 469). The conduct of the appellant, in sending a text message using the complainer's phone shortly after the alleged attack upon the complainer when she had fled from the scene leaving items of property including her mobile phone, was of potential relevance to inferences that might be drawn concerning the actus reus itself and also as to the appellant's mens rea. Evidence of the sending of the text and its context was relevant to the proof of charge 7. It was closely related to the events libelled in that charge in time, place and character. It supported the evidence of the complainer that she had abandoned clothing and property, including her mobile phone, as she fled from the locus after the attack on her by the appellant. That evidence was linked to the evidence from the complainer's mother, to which no objection had been taken, that at a time after the text was sent the SIM card and battery from the complainer's telephone were found hidden inside a sock in the appellant's bed. The sock had DNA linked to the appellant. Shaun Cumming's evidence was that he socialised with the complainer and used to go to the cinema with her but had never before received a text of such a nature from her. The trial judge, in his report, described other evidence which pointed to a desire by the appellant to control and manipulate most aspects of the complainer's life and to impose restrictions on her private life. Such behaviour was linked to an escalation of sexual violence by him towards her culminating in the events libelled in charge 7. The text message sent to Shaun Cumming was aggressive and sexual in its terms and was wholly consistent with and supportive of such a pattern of behaviour by the appellant towards the complainer. In any event the defence had fair notice of the content of the evidence of the text message and of the Crown's intention to lead it in evidence. Pre‑trial disclosure of Shaun Cumming's police statement was made on 9 January 2008. A certified copy of the transcript of the text message itself was disclosed on 28 February 2008. The trial did not commence until 27 May. Both the witness Shaun Cumming and the report of the phone analysis, which contained a transcript of the text message, were referred to in the list of witnesses and productions appended to the indictment. In all the circumstances, the trial judge had been correct to repel the objection and to allow the evidence to be led. In any event, even if he had erred in that regard, there had been no miscarriage of justice in light of the other evidence in the case.

Discussion
[18] Although it was accepted by the Crown that the appellant was not offered access to legal advice prior to or during either of the two police interviews, parts of which were led in evidence at the appellant's trial, Mr Shead accepted that was insufficient of itself to justify a conclusion that the appellant's trial had been unfair. While the leading and reliance upon the evidence of the appellant's interviews in such circumstances was a violation of his rights under article 6(3)(c) read in conjunction with article 6(1) of the Convention, Lord Hope of Craighead in Cadder v HMA (cit. sup.) observed that that alone was insufficient to justify quashing a conviction. He concluded that the quashing of a conviction in such cases

"would only be appropriate if it was clear that there was insufficient evidence for a conviction without the evidence of the police interview or that, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict had they not had that evidence before them (McInnes v HM Advocate)" (para [64]).

Mr Shead recognised that he could not succeed in the appeal against conviction unless the court were satisfied that without the evidence of the police interviews there was insufficient evidence to merit a conviction of any charge or, failing that, that there was a real possibility that the jury would have arrived at a different verdict had they not had the evidence of the police interviews before them.

[19] As we have noted above [para.[7]), Mr Shead acknowledged that without the evidence of the police interviews, there was sufficient evidence for a conviction in respect of charges 3 and 7 but he maintained that there was insufficient evidence for a conviction of charge 6. Mr Shead's concession in relation to charges 3 and 7 was properly made, having regard to the summary of the evidence provided by the advocate depute. The jury obviously accepted the evidence of the complainer in respect of these charges and there was ample corroboration from the various witnesses referred to above implicating the appellant in the commission of charges 3 and 7. As for charge 6, again it must be assumed that the jury accepted the complainer's evidence about the appellant's conduct which formed the basis of charge 6 because the trial judge clearly directed the jury that, if they did not believe the complainer's account of the various incidents or if they were left in a reasonable doubt as to whether they should believe the complainer or not, the appellant would be entitled to be acquitted (judge's charge page 47). Thus, as with the other two charges, the question for our determination is whether there was a sufficiency of evidence to corroborate the complainer's account. The complainer's evidence about the commission of the offence was, in our view, corroborated by the evidence of her mother and DC McRae about the damage to her bra as well as the evidence of the forensic scientist about the damage to her boxer shorts which were recovered from the appellant's car and the evidence of the forensic scientist and DC McRae relative to the discovery of buttons in the rear of the appellant's car linked to the damaged top belonging to the complainer. Finally the evidence of the complainer's mother about the complainer's appearance when she returned home was consistent with an attack upon the complainer. In all the circumstances, as was accepted by Mr Shead, there was a clear sufficiency of evidence that the offence in charge 6 had been committed against the complainer. The real issue for our determination in this regard was whether there was a sufficiency of evidence identifying the appellant as the perpetrator of the crime. As with proof of the crime charged, what is required is corroboration of the complainer's identification of the appellant as her assailant. From the summary of the evidence provided to us, we consider that there was corroboration of that essential fact. The discovery in the appellant's car of the complainer's torn boxer shorts and two buttons which had been pulled from the black top belonging to her supported her evidence that she had been attacked in his car by the appellant. In terms of the joint minute of admissions, the car where these items were found, belonged to the appellant. Moreover the appellant returned home about 20 mins after the assault upon the complainer and alleged that he had been working, although his appearance suggested otherwise. While this latter adminicle of evidence was less strong than the evidence of the finding of the complainer's boxer shorts and the buttons in the appellant's car, it is nevertheless a circumstance which can be taken into account. However, even without that evidence, the evidence of the finding of the complainer's underwear and the buttons torn from her top in the appellant's car was sufficient to corroborate the complainer's clear evidence of the identification of the appellant as her assailant. In these circumstances, as with charges 3 and 7, we are satisfied that there was a sufficiency of evidence for the conviction of the appellant without the evidence of his police interviews.

[20] We must, therefore, consider whether there was any real prospect of the jury reaching a different verdict if the evidence of the police interviews had not been led. In considering this issue, it is important to recognise that the passages commented upon by the advocate depute in her speech to the jury related to facts about which there was ample other circumstantial evidence. For example, in her address to the jury the advocate depute had referred to the appellant admitting that he had worn the complainer's leggings. However, there was other evidence to the same effect apart from the evidence of his police interview. In particular there was evidence that the appellant had sent a text message to the complainer in which he made reference to being sexually aroused when he wore her leggings. At interview he admitted wearing her leggings but gave the exculpatory explanation that he did so because his legs were cold. Moreover the leggings had been found in his car. The other explanations relied upon by the advocate depute were also explanations given by the appellant in exculpation. All of the matters referred to by the advocate depute were matters for which there was ample other evidence and the comments made by the appellant in relation to them at the police interviews were exculpatory. Against that background the advocate depute invited the jury to consider whether these explanations raised a reasonable doubt in their mind about the complainer's evidence. The appellant's solicitor advocate also referred the jury to the appellant's police interviews. His purpose in doing so is evident from the terms of his comments: it was an attempt to persuade the jury that the appellant's explanations to the police were truthful and to undermine the credibility of the complainer. In his report the trial judge referred to "several unsatisfactory features" of the complainer's evidence and many "discrepancies and contradictions in the evidence of the complainer and her mother". The trial judge properly observed that "these were all matters which the jury required to weigh up and take into account in reaching their verdict on the three remaining charges". As we have noted one of the means adopted by the appellant's solicitor advocate of attacking the credibility of the complainer was to rely upon the appellant's exculpatory explanations in his police interviews. In the circumstances of this trial if the evidence of the police interviews had been excluded, the jury would have been left only with the evidence of the complainer which, despite its unsatisfactory features and its contradictions with other evidence in the case, they clearly accepted, as evidenced by their unanimous verdict, coupled with a strong circumstantial case supporting her allegations against the appellant. They would not have had the benefit of the appellant's exculpatory explanations and would have had less reason to question the credibility of the complainer's evidence. Even with the benefit of the appellant's account at interview, in which he suggested that the complainer was the instigator of any sexual conduct between them, the jury unanimously accepted the complainer's evidence about the circumstances of the offences. Accordingly we are satisfied that there was no real possibility of the jury reaching a different verdict if the evidence of the police interviews had been excluded. For the same reasons we consider that there was no possibility of a different verdict if the appellant's solicitor had chosen to conduct the trial differently in the absence of the evidence of the police interviews of the appellant. The strength of the circumstantial evidence in this case was such that there is no real prospect that the jury would have altered its favourable assessment of the complainer's evidence on the material issues in this case.

[21] In relation to the second ground of appeal relative to the alleged misdirection, this is conclusively answered by the opinion of the court in Crozier v HMA where it is observed at paragraph [16]:

"...in so far as it was submitted that the trial judge misdirected the jury by not informing them that they should not have regard to the terms of the police interview, we consider this argument to be misconceived. Insofar as the leading of evidence of what was said in the interview might now be open to objection in light of the decision ...in Cadder v HM Advocate, that is a matter which goes to the admissibility of the evidence. For no doubt understandable reasons, no objection was taken at the trial. There was accordingly no basis upon which it would have been incumbent, or indeed proper, for the trial judge to have directed the jury to ignore the terms of the police interview".

This court agrees with these observations which are in any event binding upon it. Especially in a case in which the appellant relied upon the interview, there could be no basis for a judge directing the jury to ignore its terms. We would also observe that it is no answer to the case of Crozier that other cases are at avizandum. No suggestion was made that Crozier had been wrongly decided and in these circumstances the proper course would have been for counsel for the appellant to abandon this ground of appeal in light of the decision of Crozier. For the sake of completeness, we note that since the hearing in this appeal the opinion of the court in WMD v HMA [2012] HC JAC 46 has been delivered by Lord Carloway. In that opinion, the court followed the opinion in Crozier and concluded that a direction to the jury to ignore the terms of a police interview where an accused was relying upon it, would itself be likely to be regarded as a misdirection (para [22]).

[22] The fifth ground of appeal alleges that the trial judge erred in repelling the objection to the evidence of a text message sent by the appellant to Shaun Cumming by using the complainer's telephone. We agree with the submissions of the advocate depute that the evidence of the sending of such a message very shortly after the commission of the offence, during which the complainer abandoned items of property including her telephone, may be relevant to the commission of the crime. This evidence related to charge 7. It supported the evidence of the complainer that she had abandoned her property, including her mobile telephone, as she fled from the locus after the attack upon her by the appellant. It was linked to the evidence of the complainer's mother that she found the SIM card and battery from the complainer's telephone hidden inside a sock in his bed. No objection had been taken to that evidence. The evidence was also relevant to other evidence in the case which disclosed a desire by the appellant to control and manipulate the complainer's life as his behaviour towards her escalated in sexual violence towards her, culminating in charge 7. The text sent to Shaun Cumming was consistent with and supportive of such a pattern of behaviour. Moreover in this case, notice had been given of the evidence of the text and of the Crown's intention to lead it. There had been pre-trial disclosure of Shaun Cumming's police statement, and disclosure of a certified copy of the transcript of the text message itself. Disclosure of the statement occurred more than 4 months prior to the commencement of the trial and disclosure of the transcript of the text message was made 3 months before the trial. As the court stated in Beggs v HMA at paragraph [167]:

"...we observe that in the test as laid down by the Lord Justice General in Nelson v HM Advocate, the Lord Justice General is not prescriptive as to the methods by which notice could be given so long as the notice is referred to expressly in the indictment. But we reserve any definitive view as to the extent to which notice may be given by the mere inclusion of a witness in the list of witnesses annexed to the indictment".

In the present case, in addition to the inclusion of the witness and the production in the list of witnesses and productions respectively annexed to the indictment, the appellant's legal advisors were provided with copies of the witness statement and a transcript of the text message. In the circumstances of this case we consider that the notice given to the appellant's advisors was sufficient to enable the Crown to lead the evidence which was clearly relevant to the proof of the commission of the crime by the appellant.

[23] As we have observed above (para [6]) the appeal against sentence was not insisted upon. Accordingly we shall refuse the appeal against conviction and sentence.