APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2014] HCJAC 8
Lord Eassie Lady Smith Lord Drummond Young	Appeal No: XC483/12   OPINION OF THE COURT   delivered by LADY SMITH   in   APPLICATION TO ALLOW ADDITIONAL GROUNDS OF APPEAL   by   TIMOTHY ROBSON   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: D Hughes; Beltrami & Co

Respondent: Scullion, AD; Crown Agent

 

21 February 2014

 

Introduction
[1] On 11 June 2012, the appellant was convicted, at Oban Sheriff Court, by unanimous verdict of the jury of charge two on the indictment which was in the following terms:

"Between 28 July 2010 and 29 July 2010, both dates inclusive, at Bainoe Cottage, Kilmore, Oban you...did indecently assault SB...and did while she was asleep and bereft of the power of consent or otherwise owing to her being asleep, remove her clothing and repeatedly insert your fingers into her private parts."

 

[2] Charge (1) was a charge in which it was alleged that the appellant had also, between 1 January 2010 and 29 July 2010, supplied diazepam to the complainer, SB, contrary to the Misuse of Drugs Act 1971 sec 4(1). The sheriff directed the jury to acquit the appellant of that charge, evidence of supply being uncorroborated, having come only from SB herself.

[3] The sheriff imposed an extended sentence of 7 years, the custodial element of which was to be 4 years.

 

Background
[4] The sheriff summarises the evidence, in his report, as follows:

"The offence, of which the Appellant was convicted (charge (2)), came to light when employees at Tesco's in Oban became concerned about the nature of some images on a memory stick which the Appellant had brought in for transfer to a CD. The Police were alerted. S B a 25 year old mother of an eight month old child, was recognised by one of the Police Officers who viewed the CD. She was contacted and invited to attend at the Police Station. S B viewed a few of the images of herself on the CD before requesting that her mother be present. When her mother attended, 122 images, of which 59 were sexually explicit, were looked at. Those that were sexually explicit showed the Appellant digitally penetrating the Complainer's private parts, including her anus with 2, 3, 4 and 5 fingers. The Complainer described being 'in shock and upset', when she saw the images. It was her position to the Fiscal that she was 'obviously upset at what she saw and at what had happened'. She did not remember thinking 'she was upset because the pictures had been at Tesco's'.

 

The Police Officers who conducted the enquiry described the Complainer as being 'horrified' at the images and 'shocked and disgusted'. PC Shields described her as 'crying and being in a state of disbelief' at what she was looking at.

 

The Appellant, who was identified to the Police by the Complainer, was detained under Section 14 of the Criminal Procedure (Scotland) Act 1995. When cautioned he maintained he had taken 'hundreds of photographs of the Complainer'. As a consequence he was escorted back to his house where a search failed to discover any other photographs of the Complainer. The Appellant himself was unable to produce any other photographs or discs of the Complainer either at the house or after. When later interviewed under caution, he accepted that he was the person whose hand was shown in the images but maintained that the Complainer had consented to the photographs being taken. Later, a further formal search of the Appellant's property failed to recover any photographs of the Complainer.

 

In her evidence the Complainer vehemently denied giving her consent to the photographs being taken. She vehemently denied ever having had an intimate relationship with the Appellant. In that regard, it was her position that there was 'one hundred per cent no intimate contact...there was one hundred per cent no sexual activity...that couldn't be further from the truth.' The Complainer maintained an unambiguous position that she was unaware of the content of the CD until she viewed the images with her mother at Oban Police Station. She described to the jury how at the time of the incident, she regularly took Valium, sometimes as many as 50 tablets a day. She maintained that the Appellant would supply her with as many as 100 to 200 tablets at a time. On the day before the photographs were taken, the Appellant had supplied her with 10/20 Valium tablets. He had invited her back to his cottage ostensibly to look at some furniture which he said he had painted for her. He had promised to give her more Valium. When she arrived at the Appellant's cottage there was a power cut, the cottage was in darkness. Candles were used to provide lighting and a fire was lit. The Complainer described being given a 'Blue Wicked' to drink. She spilled the drink over her top. She took off her top to dry, this left her dressed in her bra and trousers. She described how the Appellant gave her another 30/40 Valium tablets and another 'Blue Wicked' before she fell asleep in front of the fire. It was her position that before she fell asleep there was 'absolutely no discussion' about the Appellant taking modelling photographs of her. The Complainer awoke at between 9am to 10am to find herself naked, uncovered and wearing only her socks. She was shocked and embarrassed at finding herself in this state, particularly so because the Appellant was sitting at her feet. It was not normal for her to sleep as late. She felt herself to be wet and greasy around her private parts and formed the impression that 'something had happened'. She recollected that when she saw the Appellant at her feet, he was looking at the screen of a camera. When she asked him what he was looking at he said 'nothing'. She thought that he dropped a memory card as he walked out of the room.

 

The Appellant, who was 47 at the time of the incident, described meeting the Complainer through her former partner. It was his position that when the Complainer discovered that he had an interest in photography she started to phone him asking to be photographed. He described the development of a 'loving relationship'. The Appellant told the jury he had an interest in photography and he described attending a course in reflexology in the late 80's, which he said involved the manipulation of bones and joints. He was surprised when the Fiscal put it to him that reflexology in fact was primarily concerned with the application of pressure to the feet.

 

It was the Appellant's position that on the day leading up to the incident, the Complainer had contacted him and asked him to buy some groceries as she intended coming to his cottage to cook a meal for him. He described how after the Complainer arrived at the cottage, she had spilled a drink on her top which she had taken off to dry, leaving her wearing only her bra and trousers. The Appellant maintained that the Complainer had asked him to massage her back. They became 'intimate' and the Complainer had asked him to take some 'risky' photographs of her. It was his position that the Complainer 'was practically begging' him to take the photographs. He maintained that he would not have taken the photographs if the Complainer hadn't 'kept on and on'. He maintained to the jury that the Complainer's eyes were closed in the photographs because at the time there had been a power cut and he had to use a flash. He maintained that every time the flash went off the Complainer's eyes closed. The Appellant maintained that the Complainer's distress at viewing the images was because he had taken the images to Tesco's and also because she did not want her mother to see the photographs. He denied giving the Complainer Valium."

 

Note of Appeal
[5] The note of appeal contains four grounds. It is said that the sheriff erred in refusing an aspect of an application made pre -trial, under section 275 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act "), paragraph 5(b)(xi) of which sought permission to lead evidence on behalf of the appellant to the effect that the complainer had previously encouraged him to take photographs of her in modelling poses in some of which she was partly clothed and in some of which she was naked and had asked him to take some "saucy" photographs for submission to pornographic magazines; the sheriff states, in his report, that rather than that part of the application being refused, what happened was that counsel stated he was "not insisting" on it. It is said that the sheriff misdirected the jury regarding the value of evidence about the complainer being distressed. It is said that the custodial element of the sentence was excessive.

[6] There is also a ground of appeal to the effect that the sheriff erred in repelling a "Devolution Issue" Minute in which it was submitted that the lack of state funding to cover the cost of employing an expert witness whom the defence wished to call was a breach of article 6 of the convention but, according to the case and argument lodged on 8 May 2013, that ground of appeal is no longer insisted upon.

 

Section 275 Application
[7] An aspect of the section 275 application which was granted concerned an allegation that the complainer was, by being present, party to the preparation of and communication to the appellant of a proposal whereby, if he paid the complainer £20,000 (which was increased to £30,000), then she would not appear at his trial; that is, put shortly, that the appellant was being subjected to extortion and the complainer was somehow involved.

[8] The application also sought permission to lead evidence of the appellant and the complainer having been familiar with one another since early 2008 and of their having had sexual intercourse "on a number of occasions prior to 28 July 2010". That aspect of the application was granted only to a limited extent; the defence were allowed to put to the complainer that she visited the appellant's cottage on a number of occasions and had been in a relationship with him for a specified period of time. The sheriff did not give permission for the complainer to be questioned about having had sexual intercourse with the appellant at any time prior to the incident referred to in the charge; the transcript of the section 275 hearing shows that the sheriff made it clear, particularly at pages 15 - 18, that he would not countenance any such questioning. What he was prepared to allow was questioning by the prosecutor, who would ask the complainer to define her relationship with the appellant and explore with her the fact that the CD on which the offending photographs were discovered also contained some photographs of the complainer awake and dressed in her trousers and bra. The procurator fiscal depute made it clear at the hearing that he was agreeable to asking certain questions about the complainer's relationship with the appellant. At p. 14 of the transcript, the sheriff states:

"Right. Well, the fiscal's going to ask the girl if she's been at the cottage on a number of occasions. He's going to ask her if she had an association with the accused and during what period of time. He's going to ask her, has there been an intimate relationship with the accused, and ask her to define that relationship."

 

[9] The procurator fiscal depute then corrects the sheriff to explain that he was not agreeable to asking her whether there had been an intimate relationship. It was, however, thereafter confirmed by him that he would ask her to define the relationship and the sheriff, addressing counsel, stated, at p. 15:

"And that will open the door to you, in cross examination, to ask if, in the course of that relationship she allowed the accused to photograph her without her clothes on."

 

[10] The appellant's answers in his police interview referred to his having had sexual intercourse with the complainer and, given the sheriff's ruling, those parts of the interview were not put before the jury although the remainder of his answers in which he denied the offence and spoke of prior intimacy between them, including him having, at the complainer's request, given her a back massage on the night of the incident, were put in evidence.

 

Additional Grounds of Appeal
[11 ] The appellant has now lodged a document headed "Additional Grounds of Appeal re Conviction", the whole terms of which are prefaced with:

"It is submitted that the appellant suffered defective representation at his trial in several material respects, all of which are referred to as follows."

 

The respects in which it is alleged that defective representation occurred are:

• Failure to take possession of certain mobile phones and have them analysed, failure to consider and present as evidence a micro cassette which recorded a conversation between the appellant and a man called "John" regarding the allegation of extortion, and failure to consider the evidential value of a transcript of a telephone conversation between the appellant and another man prepared by the police which is said to have been indicative of continuing attempts at extortion;
• Failure to call defence witnesses in relation to the extortion allegation;
• Failure, at trial, to make an application under section 275 of the 1995 Act to lead evidence of the matters detailed in paragraph 5(b)(xi) of the original section 275 application in circumstances where counsel had "waived" the application by saying, at the earlier hearing, he was "not pushing the point";
• Esto counsel did not "waive" the section 275 application on that matter, the sheriff erred in law by "impliedly refusing same" - a point which, we observe, is not a 'defective representation' ground, contrary to what the overarching introduction suggests;
• Failure to "argue in terms of the existing section 275 application, or thereafter to explore in any meaningful way" the appellant's content that he had a longstanding sexual relationship with the complainer - esto counsel did not waive the point, the sheriff erred in refusing the application in that regard;
• Failure to ingather from the appellant and present at court evidence in the form of a memory chip/CD made prior to July 2010 and illustrating erotic poses;
• Failure to include in the section 275 application an allegation that the complainer had had consensual sexual intercourse with the appellant on the night of the incident;
• Failure to ensure that the entirety of the appellant's police interview was put in evidence, including that part of it in which he referred to having had sexual intercourse with on the night of the incident and before then;
• Failure to take and analyse a telephone which had on it text traffic between the appellant and complainer that would have demonstrated their relationship was amorous;
• Failure to lodge a defence production consisting of a letter from James Watt College dated 11 January 1993 intimating that the appellant had been nominated to receive an award for media/visual communications;

[12] The essence of the proposed additional grounds is that the above material:

"...could well have undermined the credibility and reliability of the complainer..." (paragraph 4).

 

[13] It is also said, without further specification, that counsel and solicitors disregarded the appellant's instructions.

[14] The proposed additional grounds have two broad themes. First, that counsel and the instructing solicitor should have done more to ingather evidence regarding communications in which the alleged extortion was discussed, and should have led evidence about the extortion matter. Secondly, that counsel should have done more to try to persuade the sheriff to allow him to question the complainer about the nature of the appellant's relationship with the complainer including (a) evidence about the prior occasions on which she had been photographed by the appellant when, it was said, the complainer had encouraged the appellant to take photographs of her of the type referred to in paragraph 5(b)(xi) and (b) occasions on which they had had sexual intercourse, including on the night of the incident. If counsel was not obliged to raise (a) again at trial - that matter having been included in the section 275 application but not having been ''pushed' at the section 275 hearing - then the sheriff erred. One way or the other, the point seems to be that questioning on these matters ought to have taken place and it was the fault of the appellant's legal representatives, or in relation to the photographs matter, the fault of the sheriff, that that had not occurred.

 

Extortion: transcript of telephone call
[15] A transcript of a telephone conversation which was provided to the defence by the Crown immediately before the trial (production 8). The conversation bears to have taken place between the appellant and another man in which the appellant is asked:

"What, what, what you wanting to do about it, er, what ya wanting to do about this whole thing Timmy?"

 

The appellant answers:

 

"I'm for squaring it up..."

 

Then, when asked:

 

"What ya talking about..."

 

the appellant says:

 

"Aye, what's the score, you tell me what the score is, the deal."

 

Reference is made by the other man to him knowing that the police are "trying to put a bit of pressure on" the complainer, to putting an offer in writing and then:

 

"Aye Timmy, Timmy, what's er, lets just cut to the nitty gritty, what ya, what ya talking about here cause, I think, I think you're talking about a good few years in ya, a good few years of your life if this come to a guilty charge as you know yourself mate So, er, I don't know what you're willing to play ball with to be honest...".

 

The appellant states:

 

"Well, I was told twenty grand"

and adds:

 

"It's an awful lot of money man, I'll settle for fifteen."

 

Extortion: missing evidence
[16] Regarding the mobile phones referred to, it is accepted by the solicitor who previously acted for the appellant that he advised that solicitor that he had received phone calls in which someone was asking him to pay money so that evidence would not be given against him. The solicitor also accepts that he did not take possession of any mobile phone from the appellant; rather, he advised him - understandably - to report the matter to the police. The appellant did not do so.

[17] At least one of the phones and text messages which the appellant states were relevant to the extortion issue, appear to have been lost.

 

Responses, transcript of section 275 hearing, and sheriff's report
[18] Counsel who represented the appellant at the trial has provided a detailed, frank and helpful written response to the proposed new grounds and his instructing solicitor has provided an affidavit that is also detailed and helpful.

[19] Regarding the extortion matter, it is clear that a considered decision was made to advise the appellant that it should not be explored in evidence at all. A number of factors weighed with counsel. He considered that the appellant actually came across as suborning perjury. The procurator fiscal depute had told him that if the extortion line were pursued at trial then he would rely on the transcript and seek to draw the adverse inference that the appellant had indeed done just that. The complainer was not party to any of the phone calls referred to; they did not directly implicate her as being party to a criminal conspiracy to extort money from the appellant. The caller in the transcript did not display any special knowledge which would have only been known to the complainer. The appellant had not terminated the call as could have been expected if he had thought that the call came from a 'crank'. Counsel felt that the terms of the transcript were such that the appellant could come across not as a hapless victim of extortion but as someone seeking to bribe the complainer because he had good reason to do so, so as to seek to achieve her silence in circumstances where he was guilty of the offences charged.

[20] Separately, counsel observed that the appellant had previous convictions for contraventions of sections 5(1) and 4(3)(b) of the Misuse of Drugs Act 1971, one of which had been at High Court level and had resulted in a five year sentence, which the prosecutor would have been entitled to bring out if it had been put to the complainer that she had been involved in a scheme to extort money from the appellant. He considered that, given the nature of charge (1) and the inference that might be drawn to the effect that the appellant had either drugged the complainer or taken advantage of a woman who was under the influence of drugs, it would be contrary to his interests to run the risk of those convictions being disclosed.

[21] Overall, counsel concluded that to contend that there had been extortion involving the complainer would be a counter-productive and precarious line of defence. His judgment was that the extortion evidence would not help to secure the appellant's acquittal and could damage his prospects of doing so. The appellant was fully advised and he agreed that the extortion line should not be pursued.

[22] Regarding paragraph 5(b)(xi) of the section 275 application and evidence about there having been a prior and sexual relationship between the appellant and the complainer, the responses provide the following explanation. First, at no time did the appellant actually produce any earlier nude or sexually explicit photographs of the complainer. Secondly, regarding the allegation that there was a failure in respect of the CD referred to in the fifth bullet point above, counsel advises that whilst such a CD of a pornographic film was passed to agents by the appellant, it did not feature the complainer. Turning to the section 275 application, it did not include a request to be permitted to question the complainer about having had sexual intercourse with the appellant on the night of the incident because the instructing solicitor - who drafted the application - had advised the appellant that to do so would be a high risk strategy; it was highly unlikely that the complainer would admit that it had occurred and even if she did, that would not show that she consented to the acts demonstrated in the photographs which were quite different in nature and could, conversely, harm the appellant's position since it might appear that he had had sexual intercourse with a sleeping and/or drugged woman that night. The appellant had accepted that advice and agreed that the matter should not be included in the application. So far as the appellant's position that he had had a prior intimate relationship with the complainer was concerned, in the course of discussions at the section 275 hearing, reference is made in the responses to the agreement to which we refer above to the effect that the prosecutor would invite the complainer to define the relationship that had existed between her and the appellant and the extent to which defence counsel would be allowed to explore the detail of that relationship would depend on her answer.

[23] Regarding paragraph 5(b)(xi) of the section 275 application, as the transcript of the hearing shows, the sheriff made his position clear; he would not countenance any questioning about a sexual relationship between the appellant and the complainer. Specifically with regard to paragraph 5(b)(xi), he made it clear that he considered it to be irrelevant to the issue in the case which was whether or not, at the time of the alleged incident - the actus reus of which was accepted by the appellant as having been carried out by him - the appellant consented, a question which would require to be answered in the negative if she was asleep and therefore unable to consent. In these circumstances, as is evident from a passage at page 20 of the transcript, regarding paragraph 5(b)(xi) of the application, counsel eventually said:

"...I hear what your Lordship has to say about that and I'm not pushing that matter."

 

and the sheriff responded:

 

"Well, I'm not going, I wouldn't be allowing you to ask that question anyway even if you did try to push it."

 

[24] In his report for this court, the sheriff confirms that the prior photographs referred to were, in his view, irrelevant; the charge was one of indecent assault while the complainer was asleep and bereft of the power of consent. The issue was whether they were taken when she was asleep and the proposed photographs were not relevant to that issue. The sheriff also makes two pertinent observations; first, that it became apparent at the hearing that there was no evidence in any of the Crown or defence statements to support the proposition that the complainer had encouraged the appellant to take pornographic photographs of her and secondly, that it was always understood that evidence would be led via 5 photographs that were also on the CD that the appellant had taken to Tesco, of the complainer having posed in her bra and trousers for what was described in her evidence as "glamour photographs". The jury did, accordingly, have evidence before them of the complainer having previously and consensually been photographed, partially naked, by the appellant.

[25] Regarding the 17 year old letter from James Watt College, counsel explains that he did not consider that it ought to be lodged; the appellant's photographic credentials were established via a Joint Minute in which it was agreed that he had made a photographic contribution to the local newspaper and, in any event, the appellant was not on trial for the quality of his photography. That was, we consider, a matter that was plainly for the judgment of the counsel and we cannot fault his conclusion.

 

Submissions for the appellant
[26] In moving his motion that the appellant be allowed to amend his grounds of appeal in the terms proposed, counsel referred to and adopted the terms of the "Additional Grounds" document and submitted that the matters referred to were not adequately ventilated at trial or, as in the case of the extortion line, not ventilated at all.

[27] Regarding the extortion line, it might have been a fruitful line of cross examination. There was a possibility of it undermining the credibility of the complainer although counsel accepted that the fact of being subject to extortion might not be a full answer to the allegation of assault. Production 8 was equivocal and could be seen as showing either extortion or subornation of perjury; the latter was not, he submitted, the only way of interpreting it.

[28] Regarding the prior relationship, counsel explained that the submission would be that the problem was that although the procurator fiscal did ask the agreed question about whether there had been a prior relationship between the appellant and complainer, the matter had not been explored in sufficient depth. Likewise, although the appellant's position was, to an extent, set out in the evidence led about his police interview, the excluded part meant that their relationship had not been fully explored. The submission would be that had such fuller exploration taken place then the complainer's evidence could have been undermined. No elaboration was offered as to how that would have come about.

[29] When invited by the court to address the responses from trial counsel and his instructing solicitor, Mr Hughes made some general observations but did not attempt any serious challenge. In particular, he did not address the clear explanation that the appellant had agreed, after being fully advised, that the extortion line should not be pursued. Nor did he address the clear explanation that, having been fully advised on the matter, the appellant agreed that the line to the effect that the complainer had had consensual sexual intercourse with him on the night of the incident should not be pursued. Nor, so far as photographs were concerned, did he suggest that there had in fact been any photographs available of the type referred to in paragraph 5(b)(xi).

[30] Counsel said that there was some factual divergence between parties, an example of which was that the solicitor did not, contrary to the appellant's position, accept that he had presented a mobile telephone to him and the appellant did not accept that a micro cassette found by the solicitor when he was clearing out his office when he was due to retire, was blank. We note that the solicitor's primary position is that he has no recollection of any micro cassette being handed to him by the appellant and that whilst he did send a micro cassette found by him on the floor in the vicinity of the place where the appellant's file had been kept, to the appellant's new solicitor, that is as far as matters go. He evidently did not know whether or not the tape related to the appellant or not and there is nothing in the papers submitted by the appellant that demonstrates that it did. No specific issue was taken with any other parts of the responses.

 

Discussion and Decision
[31] A full bench in Anderson v H.M. Advocate 1996 S.C.C.R. 14 held that the conduct of an accused's case will only be held to have deprived him of his right to a fair trial if the conduct of the defence was such that the accused's defence was not presented to the court (at p. 31). This may arise where the accused was deprived of the opportunity to present his defence or because counsel or his solicitor acted contrary to his instructions as to the defence which he wished to be put or because of other conduct which had the effect that, because his defence was not presented to the court, a fair trial was denied to him (Anderson (supra) at 131 and 132).

[32] In Woodside v H.M. Advocate 2009 S.C.C.R. 350; 2009 SLT 371; 2009 S.C.L. 578, the Lord Justice Clerk (Gill) considered the relevant test. It is, he said, not a performance appraisal in which the court decides whether this question or that question should or should not have been put; or whether this line of defence or that should or should not have been pursued (paragraph [45]). The appellant must demonstrate that there was a complete failure to present his defence either because his counsel or solicitor advocate disregarded his instructions or because he conducted the defence as no competent practitioner could reasonably have conducted it (at paragraph [45]; see also McBrearty v H.M. Advocate 2004 J.C. 122; 2004 S.C.C.R. 337; 2004 S.L.T. 917, at paragraphs [34] to [36], [60]; Grant v H.M. Advocate 2006 JC 205; 2006 SCCR 365; 2006 SLT 563, at paragraphs [21] to [23]; DS v H.M. Advocate 2008 SCCR 929; 2008 SLT 1128; 2009 SCL 127, at paragraphs [39] to [46]).

[33] The court will not entertain an appeal on the ground of defective representation when all that is suggested is that with the benefit of hindsight and further investigation it can be seen that the defence could have been stronger or that better judgments might have been made on strategic and tactical matters (Ditta v H.M. Advocate 2002 S.C.C.R. 891, at paragraph [17]; see also, Barnetson v H.M. Advocate 2003 S.C.C.R. 590; McBrearty (supra).

[34] Having carefully considered this application, the supporting papers (including the file of productions) and the responses from counsel and his instructing solicitor, we conclude that the proposed additional grounds of appeal do not begin to amount to an arguable case of defective representation. At best they amount to the appellant now seeking to take issue with judgments on strategic and tactical matters that were made in relation to defences that might have been pursued but were, ultimately, not advanced either because the appellant agreed, on advice, that they should not be pursued or because counsel had gone as far as he felt he was able to do in seeking to present the line before the sheriff. Insofar as the appellant agreed that lines should not be pursued, it cannot, of course, be suggested that a defence he instructed was not put; the issue then would be whether or not the advice which gave rise to his agreement was so manifestly wrong as to amount to defective representation.

[35] The question of whether or not it was wise to pursue the extortion line was a matter for the judgment of counsel and we consider that his reasons for the advice he gave - and which was accepted - were such as would have been arrived at by many, if not most, competent counsel in the circumstances. Questions of whether or not phones or tapes were recovered are, we consider, peripheral. They do not affect the central problem which was that the transcript in production 8 presented a damning picture of the appellant which could readily have been seen as eloquent of his seeking to suborn perjury and the prosecutor had warned counsel that that would be the position that he would adopt if the line were pursued. Further, whilst the appellant's previous convictions, which could then have been brought out, were not analogous to the main charge, it is understandable why counsel judged it to be very much against the appellant's interests for his prior involvement in serious drug trafficking offences to become known to the jury, given the subsistence of charge one during the trial and the narrative of events given by the complainer, which included that the appellant supplied a substantial amount of valium to her on the night of the incident.

[36] Regarding the prior relationship line, advice was given which, again, we consider was in accordance with that which would have been given by many, if not most, competent defence lawyers, not to seek to include in the section 275 application, a request for permission to ask questions of the complainer based on the appellant's assertion that they had had sexual intercourse on the night of the incident. So far as the matter of questioning the complainer about a prior sexual relationship was concerned, contrary to what seems to be suggested in the proposed "Additional Grounds", at paragraph 2(d), counsel could not have asked such questions because the part of the section 275 application in which permission to do so had been sought had not been granted. Furthermore, the sheriff was plainly not going to allow such questioning and had made his position clear in a way which is entirely understandable. Not only did the application not meet the requirement that the evidence would relate to a specific occurrence or occurrences (see: section 275(1)(a)), it was not possible to show that the fact of prior consensual sexual intercourse was relevant to the issue of whether or not the complainer was asleep at the relevant time and thus incapable of consenting to the intimate acts that admittedly took place (see: section 275(1)(b)).

[37] Regarding paragraph 5(b)(xi) of the section 275 application, we are not satisfied that, on a fair reading of the transcript, counsel could be said to have "waived" or withdrawn that part of the application but even if that were thought to be an appropriate description of what happened, it is clear that counsel was exercising his judgment as to how best to proceed in circumstances where he was facing a consistently hostile judicial reaction to his submissions and where the reason for that was clear, namely that the sheriff was not going to be persuaded that the circumstances of the case were such as to justify breaching the section 274 prohibitions except in very limited respects. It is not enough to point to the matter having been included, on the appellant's instructions, in the section 275 application. Counsel was bound, in the circumstances, to judge whether or not there was any prospect of success if he, as he put it, "pushed" the point and the sheriff's reaction when he said that he would not push it, is demonstrative of what would have happened had he done so, namely that it would have got him nowhere. These are precisely the sort of circumstances which the court has, in the past, had in mind when observing that a defective representation ground of appeal is not arguable on the basis that an appellant's legal representatives might have judged matters differently. Ultimately, that is what, it appears, the appellant seeks to argue in terms of these new grounds of appeal. As for the fallback position of seeking to introduce a ground of appeal which asserts that the sheriff was wrong to reject paragraph 5(b) (xi), even if he did do so, the ground does not address the issue of why, as a matter of law, the sheriff was not entitled to make that decision. It does not provide any proper basis to attack a decision which, in any event, the sheriff does not consider that he made.

[38] In all these circumstances, the application is refused.