Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

 [2015] HCJAC 108

HCA/2015/1039/XC

Lord Justice Clerk

Lord Malcolm

Lord Jones

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION

by

THOMAS BYRNE

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: McConnachie QC; Paterson Bell (for SJ Hamilton, Airdrie)

Respondent: A Prentice QC AD; the Crown Agent

12 November 2015

[1]        On 24 February 2014, following a 5 day trial at Glasgow High Court, the appellant was convicted of the attempted rape of the complainer, on a single occasion, between April 1979 and April 1980.  The evidence came primarily from the complainer and her friend, SG. 

[2]        At the time of the trial the complainer was 48 years of age.  She described an incident when she was aged 13.  She had gone to stay overnight at SG’s house.  She recalled there being several adults present.  At some point, she was in a double bed which she shared with SG.  The side of the bed was up against a wall.  Before she went to sleep, the door opened and light shone in from the hallway.  The appellant, who was then aged about 26, walked in, closed the door, undid his trousers and belt, took off his shirt and got into the bed beside her.  She rolled over to face away from him.  He lay behind her.  She described being frightened and not doing anything in response.  The appellant began to touch her breasts and vagina in the terms of the libel.  The complainer managed to climb over SG, so as to put her friend between herself and the appellant.  She did not tell anyone about the incident thereafter, but she and SG had drifted apart.

[3]        In about 2009, the complainer and SG got back together again, via the medium of “Friends Reunited”.  It was accepted during the course of the trial that there had been a degree of discussion between the complainer and SG thereafter.

[4]        SG was 46 years of age at the trial.  She described an incident, when she was 12.  The complainer had been staying overnight.  They had gone to bed in her mother’s room.  The appellant had come into the room numerous times and had been asked to leave.  He had kept telling SG to go with another man, at what she described as a family party, thus enabling him to be alone with the complainer.  The bed had been pushed against the wall deliberately that night in order to make access more difficult for the appellant.

[5]        On the last occasion when the appellant had come into the room, he had got into the bed without any trousers.  SG was frozen by shock and fear.  The appellant was beside the complainer in the bed and behind her.  She heard noises that, as an adult, she considered to be reminiscent of sexual intercourse.  These were movements, pushing and pulling and heavy breathing and moaning by the appellant.  She heard the complainer saying no.  SG’s recollection was that initially the complainer had been by the wall when the appellant entered the room.  However, later she (SG) had been beside the wall.  She did not recollect ever having been next to the appellant in the bed.  Afterwards, she too did not tell anyone what had happened.  She and the complainer had little to do with each other after that night.

[6]        In due course, a no case to answer submission was made to, and rejected by, the trial judge.

[7]        The twin grounds of appeal are, first, that the trial judge had erred in rejecting the submission, which had been based on a lack of conjunction of testimony.  Under reference to McDonald v Scott JC 54; Young v HM Advocate 1997 SCCR 405 and Fox v HM Advocate 1998 JC 94, it was said that the lack of conjunction, notably the discrepancies which existed between the accounts given by the complainer and the witness, was such that it could not be said that corroboration of the complainer’s account existed.

[8]        The second ground, which is closely related to the first, is that the verdict was one which no reasonable jury, properly directed, could have reached.  It was accepted under reference, in particular, to Dreghorn v HM Advocate 2015 SCCR 349 that that test was a high one.

[9]        In response, the Crown submitted that there had been no error on the part of the trial judge in refusing the no case to answer submission.  There had been a sufficiency of evidence, even although there were differences between the accounts given.   The judge had been entitled to consider the similarities as well as the differences and to reach the conclusion that it was open to the jury to find the appropriate confirmation or support for the complainer’s account of the crucial facts as libelled on the indictment.

[10]      Under reference to the standard authorities, including King v HM Advocate 1999 JC 226; Geddes v HM Advocate  2015 JC 229 and Dreghorn v HM Advocate (supra), it was submitted that the high test for unreasonableness had not been reached.  The context in which the witnesses had given their evidence was important.  The court did not have the benefit of seeing and hearing the witnesses.  It did have the trial judge’s report of his general impression, which was that the verdict reached had not been an unreasonable one. 

[11]      The court has had the advantage of having read the critical testimony of the two witnesses, namely the complainer and SG.  It has also had the benefit of the trial judge’s impression on the import of that evidence.  His comments upon it must be given due weight.  The complainer testified to seeing the appellant enter the bedroom, remove his trousers and get into the bed behind her.  He had then assaulted her in the manner libelled.  The complainer’s friend SG also spoke to the appellant entering the bedroom, having no trousers on, getting into the bed and lying behind the complainer.  She spoke to there being movements and noises of the type which she would now associate with sexual intercourse.  The totality of this evidence provided the sufficiency in relation to the facts in the libel.  Indeed, unusually, this was an allegation, which was initially one of rape, where there was an eyewitness to events. 

[12]      The submission for the appellant constitutes a critique of the evidence, highlighting the discrepancies and inconsistencies which existed; all of which, however, were before the jury for their consideration.  Given that the prosecution related to matters occurring over 30 years ago, it is not surprising that such discrepancies and inconsistencies arose at trial.  Nevertheless, it was not only the evidence of the events libelled, which occurred in the bed over what might have been a relatively short period, that coincided.  There was coincidence in the background circumstances, notably the fact that the complainer was at a sleepover at SG’s house; and that the room had a double bed which, at the time of the incident, had been pushed up against the wall. 

[13]      There was no evidence to contradict that of the complainer and SG and thus no evidential support for the contention not only that the evidence could not be relied upon as credible or reliable, but also that the complainer and SG had joined together to tell lies about the incident.  The main line of cross-examination of SG had been that, after little or no contact with the complainer for some decades, she had deliberately lied to the police and to the court in order to support a fictitious account given by the complainer.  That is of course an entirely legitimate line to take, but the problem which remained for the appellant was that there was no obvious reason why the witness would have done this. 

[14]      In all these circumstances, not only was there a corroborated case, but the verdict arrived at by the jury was one which cannot be described as unreasonable.  In these circumstances, this appeal must be refused.