Appellant: J Carroll, Solicitor Advocate; Drummond Miller LLP

Respondent: Niven-Smith AD; the Crown Agent

7 May 2014
The Trial
[1] On 17 January 2013, at the High Court at Glasgow, the appellant was convicted of repeated indecent assaults on his two stepsons on various occasions between 1975 and 1984, including the sodomy of the younger one. On 14 March 2013, he was sentenced to a cumulo period of 8 years imprisonment.

[2] The evidence came principally from the two complainers. The first, namely RB, was 44 at the time of the trial. He recalled the marriage of his mother to the appellant when he was aged 7. Thereafter the family, which included two older sisters, lived at addresses in Ayr. Both complainers regarded the appellant as their father. RB stated that the assaults on him began when he was 8. He shared a bedroom, and initially a double bed, with his brother, namely HB, the second complainer. The appellant got into the bed and started touching RB's genitals, whilst masturbating. He also induced the complainer and his brother to masturbate him. This happened every week and, when occurring in the bedroom, would involve both boys. However, there was also conduct involving only one boy at a time. This was when the appellant engineered a situation whereby only he and one boy would be in the house. The boy would then be abused in the bathroom. This involved inducing the complainer to perform oral sex on the appellant. The behaviour stopped when RB was 14. Disclosure to others did not occur until 2011 when, having met the appellant after a long absence, the complainer told his wife and sister A. He had not discussed the matter with his brother. Once he had disclosed what had happened, he had sought help in the form of counselling and medical assistance in the form of anti-depressants. He had consulted a psychiatric nurse.

[3] The second complainer was 42 at the time of the trial. He gave what the trial judge describes as "a virtually identical account of the abuse", which began when he was aged 6. His recollection was that the abuse occurred 2 or 3 times per week. He also spoke to being abused separately from his brother. He described being induced to perform oral sex on the appellant and being the object of an act of sodomy when he was aged about 11. This then occurred on a regular basis. There was abuse at other locations too. After he was married, the complainer told his wife and his sister S in general terms about what had occurred. He eventually told his mother in 2011. He spoke to being distressed and disturbed for many years. He too had sought counselling and medical support.

[4] The trial judge reports that the complainers both found testifying in court deeply embarrassing and humiliating. Both were openly distressed at times. Both spoke to the traumatic effects which the abuse had had upon them.

The Appeal
[5] On 30 July 2013, the appellant lodged a Note of Appeal on the basis of what he maintained was new evidence. This evidence, which was supported by affidavits, was said to come from 3 relatives: namely JB, EB and JPB. At some point prior to the trial, the first complainer had spoken to JB, in the presence of EB and JPB, "in terms which suggested he was falsely implicating the appellant in a crime that was yet to come to trial". The police had taken a statement from JB prior to trial, on 16 March 2012, but nothing of this nature had been reported.

[6] In terms of an affidavit sworn on 4 July 2013, JB, who is the appellant's brother, states that the first complainer phoned him "one Wednesday" before the trial saying that he wanted to come and speak to him. The complainer went to JB's house where JB's wife, EB, and son, JPB, were also present. The complainer told him that the appellant had been "bullying" both him and the second complainer. When JB asked what he meant, the complainer said that there had been sexual abuse. When JB said "You were sexually abused", the first complainer had said "No. I wasn't sexually abused. It was [H]". What came to be of particular significance was JB's sworn statement (para 8) that, at that time, JB "did not know that there was an imminent case". "All" he had heard was that the appellant had been stopped from seeing his grandchildren. He said that he had not spoken to his brother for several years. Before the trial, he had repeated what had been said to his sister, but she had not said anything until after the trial, when she had told the appellant's wife.

[7] JB's wife, EB, deponed that she had overheard the complainer saying "It wasn't me. It was [H]" who had been sexually abused. She stated that she "had no knowledge at the time that [the appellant] had been charged with sexual abuse" although she had been aware of allegations in relation to both complainers. JB's son, JPB, swore an affidavit in similar terms, saying also that at the time, he did not know that the appellant had been charged with sexual abuse.

[8] In terms of a further affidavit sworn on 24 February 2014, JB said that the meeting was "probably a couple of months" before the trial. In amplification of the terms of his prior affidavit, he recalled that:

"[R] came in mentioning sexual abuse, and I asked him 'What?' to which he replied 'No me, no me uncle [J], oor [H]. I took this to mean that he had not been sexually abused, but rather [H], his brother had. He spoke about bullying and sexual abuse by [the appellant]. He did not say he had witnessed abuse of [H] and I did not ask him how he knew. He did say, about [H's] allegations 'So he says' which I took to mean that he had not witnessed any abuse but had been told by [H] about what [H] said had happened.

I did ask [R] about [the appellant] bullying [H]. [R] said that he had seen that. [R] did mention that the police were involved. I listened to him but did not push him for more precise answers about how and when this had all happened."

However, this time he swore that the first complainer had told him "that there would be a trial in the New Year" about the allegations of sexual abuse by H and the appellant bullying R and H. He also said that he had only spoken to his sister after the trial, once he had heard that the conviction related to R.

[9] EB's new affidavit states that she had heard from the appellant's ex-wife that he had been charged "with offences" and had found out more about them when RB had visited. JPB's affidavit described a fall out between the appellant and his brother, which does not seem to have affected relations between JB's children and their uncle, aunt and cousins. JPB had "heard through the grapevine that there would be a court case". Further affidavits from other family members were lodged in order to provide some background on the appellant's, the complainers' and JB's somewhat fractured extended family history.

[10] A few days after the second group of affidavits had been signed, the police took (signed) statements from the protagonists. The first complainer gave a different account of the visit to his uncle's house. The visit had been prompted by Facebook communications between his daughter and JB's daughter, with the latter seeking information about what was happening in relation to the appellant's trial. JB had wanted to speak to the complainer. JB had then phoned him and the complainer had visited him before Christmas 2012. The conversation had turned to the issue of sexual abuse. The complainer's version was that this had started off with JB making a profuse apology for his brother's conduct. He had again apologised and the complainer had replied that, whilst what his brother had done to the complainer was bad enough, what he had done to the second complainer had been even worse because he had been only 5 when it started. The first complainer spoke to returning to JB's house immediately before the trial had started to say that the case had been adjourned because "they couldn't pick a jury". He had spoken again to JB after the sentence and reported JB to be "over the moon" that the complainer had secured justice.

[11] JB's statement repeated his own earlier version, but this time he said that the complainer had told him that "it was going to a trial in the New Year". He gave a different account of the post sentence 'phone call. EB's account this time was that, around November 2012, "we" had heard that the appellant was "either getting charged or had been charged with abuse against [R] and [H]"; "It was all over Whitletts".

Trial Judge's Observations and Appeal Procedure
[12] The trial judge observes, in relation to the Note of Appeal, that he found the testimony of both complainers to be "credible, reliable and highly persuasive". That evidence involved the effect that the offences had on the first complainer in later life, which was unchallenged by the appellant, including the need to undergo counselling, to be prescribed antidepressants, and to consult a psychiatric nurse. The judge regarded the timing of the alleged conversation as both "highly unusual and convenient for the appellant". It was difficult to see why a complainer would, prior to a trial, reveal to a close relative of the accused that his forthcoming evidence would be false.

[13] On 5 March 2014, the court fixed a hearing "to address the question of whether the appeal meets the fresh evidence test". The appellant's case and argument was expressly required to address "all issues that arise in the fresh evidence grounds".

Submissions

Appellant

[14] The contention was that there was a reasonable explanation as to why the evidence had not been heard at the trial. This related to a family rift occurring 16 or 17 years beforehand. Communication between members of the family varied between sparse and nil. JB, EB and JPB had been aware pre-trial that some allegations had been made, but they did not know their full extent, including that the first complainer had made allegations of sexual abuse of himself and had witnessed the abuse of the second complainer. Viewed objectively, the circumstances of the timing of what the complainer had said, after he had implicated the appellant and was in contemplation of giving evidence, supported the proposition that he was falsely implicating the appellant.

[15] No criticism could properly be directed at the appellant's former solicitors for not making enquiries of the extended or estranged members of the appellant's family to find out if the complainers had ever made conflicting statements (cf Burzala v HM Advocate 2008 SCCR 199). The discovery had only occurred post-trial and had not previously been uncovered by the police or the Crown.

[16] The tests in relation to miscarriage of justice in the context of new evidence were well known (Megrahi v HM Advocate 2002 JC 99, LJG (Cullen) at para 219; see also Cameron v HM Advocate 1991 JC 251; Hall v HM Advocate (No 2) 1999 SCCR 130; and Fraser v HM Advocate 2008 SCCR 407). Had the evidence been available at the trial, its use to attack the first complainer's credibility could have had a material effect on the jury's majority verdict, with the consequence that both charges would not have been proved; given that they required the application of the principle of mutual corroboration of the complainers' testimony.

Crown

[17] The Crown's response was that the appellant had failed to provide a reasonable explanation for not having adduced the evidence at the trial. This was the essential key which unlocked the door giving access to the unheard evidence (Campbell v HM Advocate 1998 JC 130, Lord McCluskey at 167). The appellant's key was defective upon a critical analysis of the new evidence as presented in the affidavits and police statements. The appellant required to persuade the court that the explanation was genuine and that could not be done given the divergences in the affidavits. Taking the evidence as a whole, all 3 new witnesses had been aware of the forthcoming trial. Although the Crown were prepared to proceed on the basis that agents had not carried out any inquiries of the extended family, there was a real concern about the explanation tendered.

Decision
[18] The appellant requires to demonstrate first that there is a reasonable explanation as to why the evidence was not heard in the original trial proceedings (1995 Act, s 106(3)(a); Campbell v HM Advocate 1998 JC 130, LJC (Cullen) at 146). Unless there is a reasonable explanation, the appeal cannot succeed (ibid Lord McCluskey at 167). On the hypothesis that the evidence of the conversation, as described by JB in his affidavits and statements, is genuine, the court is prepared to proceed at this stage on the basis that a reasonable explanation may exist for that evidence not having been heard at the trial. That hypothesis, however, should not be taken as an indication of the court's view on that genuineness, or that after a full enquiry the same result would follow.

[19] There is no evidence before the court, in the form of an affidavit or a statement from either the appellant or his former agents, that the conversation, whatever its content, was not known to the appellant or his legal advisers. There is no evidence about what consideration was given by agents, in consultation with the appellant or otherwise, about any inquiries of members of the appellant's extended family. In the future, the court wishes to make it clear that it would expect that type of material to be made available.

[20] The appellant must also demonstrate that the evidence is of such significance that the fact that it was not heard at the original proceedings must be regarded as a miscarriage of justice (s 106(3), Megrahi v HM Advocate 2002 JC 99, LJG (Cullen) at para [219]). This means that the court must be satisfied that the evidence is capable of being regarded by a reasonable jury as credible and reliable (ibid). If it is, then it must be of such a kind and quality that it was likely to have had a material bearing on the jury's consideration of a critical issue at the trial (ibid).

[21] It is important to observe that, in an appeal of this type, there is a danger in ascribing to new evidence more significance than it would have had at the actual trial. It is important therefore to assess the new evidence in the context of the whole testimony adduced at that trial. Although the focus at the appeal hearing was naturally on the evidence of JB, the court has viewed it in the context of the testimony of the complainers and, in particular, the trial judge's helpful observations upon the quality of the complainers' testimony and the features supporting its veracity.

[22] Evidence of a prior inconsistent statement having been made by a witness, or in this case the first complainer, would, of course, have been admissible at trial to the extent of it being proof that such a statement had been made. Thus the account of the conversation given by JB and his family could have been put to the complainer and their evidence may have been led in order to test the complainer's credibility. In the context of the whole of the complainer's evidence during the trial, however, the court is not persuaded that the evidence of this conversation would have had a significant effect on the assessment of that complainer's credibility. In particular, applying its judicial experience and understanding, the court does not consider that a reasonable jury would accept as genuine the account given of the conversation by JB, standing in particular the significant discrepancies in the affidavits and statements given by JB, which were not disputed, concerning his awareness of a forthcoming trial. Similar considerations apply to EB in her accounts of her knowledge of whether charges had been laid at that stage.

[23] Furthermore, the terms of the conversation, as described by JB and his family in both the affidavits and the statement, are vague. JB appears to be making his own suppositions as to the meaning of ambiguous and passing remarks attributed to the first complainer, which he did not seek to clarify and which are somewhat improbable in the context of the evidence which the complainer gave at the subsequent trial. Even if JB's account were accepted, it being on a matter going simply to credibility, a reasonable jury would not have regarded it as materially undermining the account given by the complainer, given that account's otherwise apparent genuineness, as described by the trial judge, and the mutual support given to it by the second complainer's testimony.

[24] In the whole circumstances, therefore, the court does not consider that this evidence was of such significance that the verdict returned in its ignorance is to be regarded as a miscarriage of justice. Accordingly, for all these reasons, this appeal is refused.