APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Drummond Young Lady Clark of Calton	[2014] HCJAC 17 XC741/12   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   IN APPEAL AGAINST CONVICTION AND SENTENCE   by   SD     Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _____________

Appellant: Findlay QC, Crowe; Capital Defence (for J Myles & Co, Carnoustie)

Respondent: Scullion AD; the Crown Agent

 

30 January 2014

Introduction

[1] On 10 August 2012, at Aberdeen High Court, the appellant was convicted of four charges involving an escalating pattern of abduction or attempted abduction of girls in Aberdeen over the period October 2007 to January 2012. The final incident, with which this appeal is concerned, involved the abduction, assault to injury and rape of EW, aged 15, by seizing her in the street, putting her in the back of his car, handcuffing her, driving her to Torry Battery, pulling down her lower clothing, grabbing her bottom and repeatedly penetrating her vagina.

[2] On 7 December 2012, the appellant was made the subject of an Order for Lifelong Restriction, with a punishment part of 5 years. This appeal concerns only the rape element of the conviction; the appellant having accepted that he abducted the girl and drove her to the locus.

 

Evidence at Trial

[3] The complainer gave evidence that she had been walking home from a party in an intoxicated state. She fell over. The appellant pulled up in his car, picked her up and put her in the back of the car. He handcuffed her hands behind her back. He took her to an isolated car park at the Torry Battery, where he released her handcuffs, led her to a part of the park, where there were pillars, took her trousers down and touched her vagina. He put on a condom and, having lifted her leg a little, penetrated her three times. This had been painful for her. On the third occasion, he had seized her by the buttocks and said "Don't do it again", before putting the condom in his pocket and walking back to his car. The complainer ran off and, having failed to raise anyone at a nearby golf clubhouse, went to the home of a friend.

[4] Corroboration came in the form of the complainer's distress when she arrived at the friend's house shortly after the incident. Her trouser buttons were undone. On medical examination, she had a number of areas of bruising, including on her wrists. Significantly, she had two recent tears to the genital area, consistent with an account of rape, which would have been painful and had been caused by blunt force entering the vagina with a degree of speed. The tears were almost opposite to one another; one at the 2 o'clock position and one at 7 o'clock. In particular, there was a "Mercedes Benz", almost T shaped, shallow tear, on the right labia minora and a shallow V shaped abrasion, approximately 1cm in diameter and pointing inwards, on the left labia minora. Both wounds were bleeding at the time of examination and swabbing caused pain. The doctor was unable to take a high vaginal swab.

[5] There was no DNA from the appellant on the complainer or her clothes. However, traces of DNA from an unknown male were found on the upper front of the complainer's pants, which could have been transferred there directly by contact or by secondary means.

[6] In his interview by the police, the appellant admitted abducting the complainer and taking her to the Torry Battery. He said that he had not sexually assaulted her. When they had arrived at the car park, the complainer had wanted the toilet. She had sat down near "a little fence thing". He had then left. In a subsequent voluntary statement, he had admitted handcuffing the complainer, sitting her down and seizing her when she had attempted to get up. However, he still maintained that he had then driven off.

[7] The appellant did not give evidence, but the defence line was in accordance with his interview and statement to the police. The complainer was cross-examined on the basis that she had not been raped by the appellant. In his speech to the jury (see charge p 59), the appellant's solicitor advocate challenged the complainer's credibility and reliability by focusing upon her drunken state, the absence of DNA from the appellant and the finding of the DNA of another male on her pants. He stressed that there was no forensic evidence to corroborate the complainer's account of penetration.

 

The Note of Appeal

[8] The Note of Appeal was lodged on 2 May 2013. It states that, in preparation for the trial, the appellant had said to his lawyers that "due to the size of his penis, he would have been unable to have sexual intercourse in the manner alleged by the complainer". It continues that he had said that he wanted to be medically examined. However, no examination had taken place and this had amounted to "a complete failure to put forward this important line of defence at trial".

[9] An examination subsequent to trial by Dr Michael O'Keefe, an "Independent Forensic Physician" with many years of experience as a forensic medical examiner, had resulted in a diagnosis of "micro-penis". In terms of Dr O'Keefe's report of 17 April 2013, this is a clinical term used to describe an "abnormally small penis", being smaller than about 7cm (3"); an average erection being 12.5cm (5"). The condition occurs in about 0.6% of males. The appellant's erect penis was recorded as 6.25cm in length, 1.5cm diameter and 2cm circumference. The doctor was of the view that, although the appellant could have sexual intercourse, this was only with difficulty, especially were there to be resistance.

[10] The Note of Appeal contended that, whilst possible, it was "highly unlikely" that the appellant would have been able to have sexual intercourse with the complainer unaided and that this evidence ought to have been before the jury. A medical report from Professor Busuttil, Regius Professor of Forensic Medicine (emeritus), dated 30 April 2013, (ie after the trial) had stated (para 6.1) that, if the vaginal injuries had been caused by a penis, this would have been one of "normal size when erect". Having repeated some of the general data in Dr O'Keefe's report, Prof Busuttil concluded that:

"The clinical findings of a 'micro-penis' would make it unlikely for this man to have caused the serious genital injuries seen on the complainer as a result of forceful non-consensual sexual intercourse."

 

All of this then amounted to a case of defective representation at trial, leading to a miscarriage of justice.

 

The Responses

[11] In a letter dated 26 July 2013, the solicitor advocate who conducted the appellant's defence (IMP) explains that his instructions had been that the appellant accepted that he had abducted the girl, handcuffed her and taken her to the locus. He had, however, simply left her there and his actions had not been sexually motivated. At his first consultation with the appellant, on 26 April 2012, the appellant had explained that he had a small penis. However, he accepted that he could have sexual intercourse with his wife and had demonstrated how he could achieve this in a standing position. In his interviews with the police, the appellant had accepted that he had had sexual intercourse with another woman. Condoms had been found at the appellant's home, which he accepted he used during sexual intercourse with his wife.

[12] A report dated 21 May 2012 was obtained from Prof Busuttil. This described the medical findings in relation to the complainer and confirmed (para 8.7) the existence of "evidence of forceful vaginal penetration ... with some degree of force", which was more likely to have been caused by penile rather that digital penetration (para 8.8).

[13] A file note taken by an instructing solicitor (LQ) records discussions at a meeting between the solicitor and two solicitor advocates (IMP and CF) on 29 May. The discussions included the need for legal aid sanction to obtain a further report from Prof Busuttil concerning the appellant's contention that he was physically unable to have sexual intercourse whilst standing up due to his unusually small penis. The solicitor advocate (IMP) had wanted the professor to examine the appellant in order to provide an opinion on whether the injuries could have been caused by penetration by the appellant's penis. A note from the other solicitor advocate (CF), dated 21 June 2012, records the appellant's position as being that he could not achieve penetration whilst standing up (cf IMP supra) and that "accordingly" the professor should be instructed to perform an examination of the appellant's penis.

[14] The solicitor advocate (IMP) writes in his letter (supra) that he met the professor on 2 August 2012 and asked him specifically about the appellant's contention that he could not have had sexual intercourse with the complainer because of the size of his penis. The solicitor advocate told the professor that the appellant had said that his penis was about 1 to 2 inches in length, with the girth of an average pinkie. He reports that the professor had explained that:

"because the injuries were not in the location that he would expect to find them, close by, but not in the usual place, the small size of his penis may, or perhaps even would, explain why the injuries were in this unusual location."

 

The solicitor advocate accepted this view and considered that such evidence would have "dramatically hindered" the defence.

[15] A file note of this meeting, taken by an unqualified assistant (AS), records that the first issue discussed was whether the size of the appellant's penis mattered in determining whether it could cause the damage. The note continues:

"Prof Busuttil explained that no matter what size the penis is if it is erect then it is going to cause damage. This could explain the presence of injuries in unusual places."

 

[16] The solicitor advocate (IMP) continues in his letter (supra) by stating that he explained this to the appellant at a meeting on 3 August by informing him that the expert "would not assist and indeed may make the case worse for him". The case could still be presented by relying on the appellant's interview with and statement to the police and the absence of the appellant's DNA on the complainer. The appellant had accepted the advice to proceed in this way. The solicitor advocate states that, as far as he was concerned, the significance of the size of the appellant's penis had been investigated and resolved prior to the trial diet. He had taken the appellant's instructions to the effect that the defence would not be presented on the basis that the appellant's penis was so small that sexual penetration was not possible.

[17] A file note of this meeting by the solicitor (LQ) records:

"[IP] ... advising regarding opinion of Prof Busuttil that the injuries are consistent with a small penis having caused them and therefore it is not in our best interests to go down that route. [IP] fully explaining this to the client and advising that any evidence about the size of his penis could actually enhance the Crown case."

 

Affidavits
[18] During the procedural hearings in the appeal process, it seemed that the appellant was, albeit in a somewhat imprecise manner, taking issue to some extent with the narrative advanced by the solicitor advocate as apparently supported by the file notes. On 8 November 2013, the court issued a Note expressing its concerns about how the appeal would proceed. This highlighted certain discrepancies between what was being advanced, regarding the likelihood of penetration, in the Note of Appeal on the one hand and the terms of Dr O'Keefe's report and the solicitor advocate's letter on the other. The court stressed that it would not entertain an application to hear testimony on the basis solely of the contents of the appellant's ex parte Note of Appeal (see Note para [12] citing Grant v HM Advocate 2006 JC 205, LJC (Gill) at para [22]); it being for the appellant to demonstrate that a miscarriage of justice had occurred. The appellant required to deal specifically with the content of the responses (supra), notably the account of the consultation concerning the professor's opinion on the cause of the injuries. There required to be "objective support" for the appellant's position (ibid para [14], Grant (supra) para [25]). It was made clear that the only ground of appeal was defective representation and not fresh evidence (ibid paras [15] and [17]). The appellant would at least have to lodge an affidavit setting out "exactly and in detail" what his position was on the exchanges with the solicitor advocate. An affidavit from the professor on his conversation with the solicitor advocate seemed also to be necessary.

[19] An affidavit from the appellant dated 13 January 2014 was lodged. In this, the appellant states (para 3) that, at a meeting with a solicitor (not IMP) on 17 April 2012, he had said that he had a very small penis and wanted a medical examination. He had used his pinkie to illustrate the size of his penis. He had had a meeting with the two solicitor advocates (IMP and CF) on 25 April and had told "the solicitor" that he "could not have sex in an upright position" because of the size of his penis. He says that he used his pinkie to illustrate his penis size when flaccid and his middle finger to show its size when erect. The latter was less than the length of his middle finger. Circumference was not discussed. The affidavit continues:

"13. I do recall telling [IMP] that it was possible for me to have ... sexual intercourse but only if the female was lying down and only if she helped me to insert my penis into her vagina. I told [IMP] that I had tried vaginal sexual intercourse with my wife but because of the size of my penis it would not enter properly into her vagina. My wife and I did attempt vaginal sex in a standing position once. The attempt ... was unsuccessful ... [I]t was impossible for me to have sexual intercourse in the standing position and I told [IMP] of this on more than one occasion."

 

The appellant goes on to narrate that at a subsequent meeting he had demonstrated how the attempt at upright intercourse had progressed. He accepts that he had also told the solicitor advocate about having sexual intercourse with another woman and requiring her assistance to do so.

[20] The appellant is adamant in the affidavit that on several occasions he had made requests to the solicitor advocate that he be medically examined. He had been told by one of the solicitor advocates (CF) that this would be done. It was not done. His recollection of the meeting of 3 August was that he had been told by the solicitor advocate that "the injuries were two tears and were caused by something small". He had no memory of the name of Prof Busuttil being mentioned. He had again asked to be medically examined. In a supplementary affidavit dated 27 January 2014, which deals expressly with the file note of the meeting of 3 August, the appellant repeats that he had not heard the name of Prof Busuttil or that an expert had prepared a report.

[21] An affidavit from Dr O'Keefe dated 29 January 2014 confirms that he wrote the report of 17 April 2013 and that it reflected his opinion. He makes reference to a further report dated 10 January 2014. This points out an error in his original report, whereby the circumference of the appellant's erect penis had been recorded as 2cm instead of 6cm. Having repeated much of the content of his earlier report and dealt with certain generalities concerning injuries caused during non-consensual intercourse, Dr O'Keefe concludes:

"I agree with Professor Busuttil - 'The clinical findings of a micro-penis would make it unlikely for this man to have caused the serious genital injuries seen on the complainer as a result of forceful non-consensual intercourse'."

 

[22] In Prof Busuttil's first affidavit, dated 14 January 2014, he explains that, at the meeting with the solicitor advocate on 2 August 2012, he was asked whether or not a small penis could have caused the injuries to the complainer. He confirms that he had answered that "in the affirmative". However, he distinguishes what a lay person would describe as a small penis from a medical diagnosis of micro-penis. Had he seen Dr O'Keefe's report, his opinion would have been that the injuries "would not likely to have been caused" by the appellant. Had he given evidence, he would have said that it was "highly unlikely". The professor accepts that it did not occur to him at the time of the meeting to consider whether the appellant had a micro-penis.

[23] In a second affidavit, dated 21 January 2014, the professor acknowledges that the unusual location of the injuries could have been accounted for by a penis which was smaller than normal and therefore in contact with areas of the genitalia other than those normally involved. Given the size of the appellant's penis, as measured by Dr O'Keefe, it was "not at all likely - but not impossible" that the appellant's penis would have caused the injuries.

[24] The solicitor advocate's affidavit, dated 4 December 2013, confirms the terms of his earlier letter. In particular, it states that the appellant had told him that he could have sexual intercourse with his wife when she was in a standing position. The solicitor advocate notes that Dr O'Keefe's measurements of length and circumference were larger than those which the appellant had told him. An affidavit from the unqualified assistant confirms the terms of the attendance note of the meeting involving the solicitor advocate and the professor.

 

Submissions

[25] The appellant relied upon the views of Dr O'Keefe and Prof Busuttil in maintaining that he ought, in terms of his instructions, to have been medically examined. Had that been done, the diagnosis of micro-penis would have been made and the evidence of the medical experts, to the effect that it was unlikely that the appellant could have caused the injuries, would have been placed before the jury. Had the evidence been accepted, there would have been no corroboration of penetration and the appellant would have been acquitted of the rape element of the libel. Where the size of the accused's penis might be relevant to the defence, he ought to have been medically examined. It was not sufficient simply to have consulted with a medical expert. The facts ought to have been placed before the expert so that he could give an informed opinion. The matter ought to have been properly investigated and followed through. It was accepted that the test for defective representation was a high one (Grant v HM Advocate (supra) at para [22]).

[26] It was accepted that if the appeal against conviction failed, the appeal against sentence must also fail.

[27] The advocate depute submitted that the test as set out in Grant v HM Advocate (supra) had not been met. The ground was based entirely on the word of the appellant to the effect that he was unable to have sexual intercourse with the complainer in the manner alleged. The material produced did not support that contention. Rather, it undermined it since the appellant's claim of incapacity was not supported either by Dr O'Keefe or Prof Busuttil. In order for their evidence to have been of value to the appellant, they would have to have confirmed the incapacity which the appellant alleged. Furthermore, the appellant would have had to have testified to his incapacity and the experts would then have contradicted his position.

[28] Prof Busuttil had based his conclusions upon the erroneous dimension of circumference in Dr O'Keefe's report. However, at its highest, Prof Busuttil's position was simply that it was highly unlikely that the appellant's penis would have caused the injuries. This had not been his position at consultation with the solicitor advocate. Given the advice, it was entirely reasonable for the solicitor advocate to have taken the position which he adopted. If called to give evidence, the professor would have had to have conceded that the appellant's penis could have caused the injuries and that one possible explanation for their locations was that the attacker had a small penis. The appellant had been in a weak position evidentially, having accepted the abduction and handcuffing. His position would have had to have been that, after he had left the complainer, someone else with a small penis had come along and raped her.

[29] The solicitor advocate's decision had been one which he had been entitled to take. In any event, the test was not whether the appellant's defence had been "fully" put before the court. It was only if the defence had not been put at all that an appellant could succeed on this ground (DS v HM Advocate 2008 SCCR 929, Lord Carloway, delivering the Opinion of the Court, at para [42]). The appellant's position had been put in cross-examination and in the defence speech to the jury. The decision not to pursue the issue of penis size had been a tactical one for the solicitor advocate to take. No miscarriage of justice had occurred.

 

Decision

[30] In DS v HM Advocate 2008 SCCR 929, the history and current parameters of a defective representation appeal were explored. The Full Bench decision in Anderson v HM Advocate 1996 JC 29 had established that, as part of his right to a fair trial, an accused person is entitled to have his defence presented to the court. If his lawyers failed to do that, a miscarriage of justice may be seen to have occurred. Following an apparent weakening of this test in a trio of appellate decisions (Garrow v HM Advocate 2000 SCCR 772; Hemphill v HM Advocate 2001 SCCR 772; and AJE v HM Advocate 2002 JC 215), there was a significant retrenchment by the court (Jeffrey v HM Advocate 2002 SCCR 822 and Ditta v HM Advocate 2002 SCCR 891) culminating in McBrearty v HM Advocate 2004 JC 122 and Grant v HM Advocate 2006 JC 205, both of which, rather like the present case, involved an alleged failure to obtain an expert opinion.

[31] What is clear from these decisions is that it is not a sufficient ground for a successful appeal that the defence might have been better or differently presented. In order to succeed, the appellant has to show that:

"the appellant's defence was not presented to the court, and he was therefore deprived of his right to a fair trial, because counsel either disregarded his instructions or conducted the defence in a way in which no competent counsel could reasonably have conducted it ...

... [A defective representation] ground cannot rest upon a criticism of strategic and tactical decisions reasonably and responsibly made by trial counsel. These are matters within the scope of counsel's legitimate judgment ... An ... appeal should not be granted leave if all that is alleged is that the defence would have had better prospects of success if the defending counsel had pursued a different line of evidence or argument, or pursued a different strategy ..." (Grant v HM Advocate (supra) LJC (Gill) at paras [21] - [22]).

 

[32] In this case, there is no dispute that the appellant told the solicitor advocate that he had a small penis, but that he could nevertheless have sexual intercourse at least in certain controlled situations. There is a dispute about whether the appellant had told the solicitor advocate that he could have sexual intercourse standing up. There may, in that regard, be a degree of confusion over what exactly is being meant by "sexual intercourse". However, that may not matter since the focus came to be not so much on whether or not penetration was possible (it clearly was), but on whether the appellant's penis could have caused the injuries. That is what was important and the matter upon which the two medical experts ultimately submitted their views after trial.

[33] There is no dispute that the solicitor advocate pursued the issue of whether the injuries, which were a very significant aspect of the case, could have been caused by the appellant's penis. He consulted a very eminent medical expert on that very subject. He told the professor that the appellant had a small penis and described its dimensions as conveyed to him by the appellant. It is at least agreed that the professor told the solicitor advocate that a small penis could have caused the injuries. There is no contradiction, in the professor's report or affidavits, that he had gone further than this and had told the solicitor advocate that it was more likely that the injuries would have been caused by a small penis, since this might have explained their unusual locations. The professor made no mention of the possibility that the appellant may have had a micro-penis and that, if he had, that would have made a significant difference to his opinion on causation.

[34] With this information at the forefront of his thinking, the solicitor advocate made a decision that it would be unwise to use any medical evidence in connection with the size of the appellant's penis, since it would be likely to make matters worse for the defence. That was a tactical decision for him to make. However, he did not just make that decision and proceed accordingly. He discussed it with the appellant. Although the appellant has no recollection of the name of Professor Busuttil being mentioned to him (and perhaps it was not), he makes no attempt to contradict the solicitor advocate's narrative that he was told that the size of his penis was not something which the solicitor advocate intended to pursue because it might explain the nature of the injuries, thus making matters worse for him. He does not contradict the solicitor advocate's position that the appellant had agreed to this course. That being so, he can hardly complain now that his instructions were disregarded.

[35] The appellant continues to maintain that he ought to have been medically examined. However, there was no apparent need for such an examination. If it were to have been part of the defence that a small penis was unlikely to have caused the injuries, the absence of medical evidence to prove the size of the penis and to confirm that it would probably not have caused the injuries would have at least given the appellant's argument a colourable content. The problem for that argument is that the decision was not to pursue the line in the first place. Once it had been discounted, there was no call for a medical examination or report.

[36] Even with the benefit of hindsight, the actions of the solicitor advocate, in deciding not to use the appellant's penis size in the defence, cannot be faulted. Indeed, it is difficult to see what other reasonable decision could have been made on the basis of the expert advice. Of course, if the existence or significance of a condition known as micro-penis had been widely known or, in particular, known to the solicitor advocate, it might have been said that he ought to have made further enquiries. Having taken medical opinion, he was no wiser on that front. The medical expert himself did not think to consider it and the solicitor advocate can hardly be blamed for not doing so.

[37] In any event, returning to the test in Grant v HM Advocate (supra), having explored the circumstances in some detail, the facts in the appellant's case do not come close to surmounting the fundamental hurdle, that an appeal on this ground can only succeed if the appellant's defence was not put before the court. The appellant's position was before the jury in the form of his interview with and statement to the police. It was supported, in so far as it could be, by the arguments presented in the defence speech concerning the absence of the appellant's DNA on the complainer and the presence of another male's DNA on her underpants.

[38] The absence of medical evidence concerning the injuries was the result of a legitimate tactical decision taken in the course of the preparations for trial. It is worth commenting in this context that, even if the evidence of Dr O'Keefe and Prof Busuttil, in its present form, had been led, for the jury to have accepted that the appellant had not caused the genital injuries (and thus raped the complainer), they would have to have contemplated a situation in which the appellant had abducted the complainer, left her in an isolated spot on the outskirts of Aberdeen only for a third party to have almost immediately appeared and decided to rape her. This seems to be stretching credulity to the maximum.

[39] In all these circumstances, no miscarriage of justice can be seen to have occurred and the appeal against conviction (and with it the appeal against sentence) is refused.