Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 21

HCA/2015/602/XC

Lord Justice Clerk

Lord Menzies

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in the application under section 107(8) of the Criminal Procedure (Scotland) Act 1995

by

MICHAEL TUPPER

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: McConnachie QC; John Pryde & Co

Respondent: Erroch AD; the Crown Agent

23 February 2016
 [1]       On 12 January 2015, at the High Court in Glasgow, the appellant was convicted after a six day trial, of 14, or possibly 13 (see infra), charges of physical and sexual violence, including rape, against three former partners over a 10 year period.  He had been represented by experienced senior and junior counsel, as well as agents.

[2]        The trial judge has provided a detailed report of the evidence-in-chief and cross-examination of each complainer.   The central issue was one of credibility and reliability.  The appellant denied that there had been any substantial physical violence and maintained that there had been no sexual violence.  The complainers were cross-examined on this basis.  In due course the appellant gave evidence to the same effect.  His defence was accordingly clearly presented to the jury.

[3]        The grounds of appeal allege, amongst other things, defective representation.  In particular, in relation to the first complainer, it is said that the agents had failed to recover certain reports which had been carried out in relation to civil proceedings and which had not mentioned any complaints of sexual abuse.  The complaint was also in relation to a failure to use certain photographs of the locus of one of the incidents.

[4]        In relation to the second complainer, the defective representation consisted of, first, a failure to call certain defence witnesses, to whom the complainer had allegedly admitted enjoying anal intercourse; and, also, in not using Facebook pages to demonstrate a friendship between the first two complainers.  There were subsidiary complaints about a failure to call the appellant’s father, relative to false allegations which has been made in the civil proceedings, and in not tracing and calling the complainer’s uncle.

[5]        The trial judge reports that the defence case presented at trial had been a strong one.  It raised the history of the bitter civil dispute, in which the complainer admitted that she had said she would use the “rape card”.  It focused on a lack of detail said to exist in the evidence of the second complainer and conflicting and confusing evidence given by the third complainer.  The appellant had spoken to the absence of references to sexual assaults in the civil proceedings.  All of these points were highlighted in the speech to the jury.  The trial judge deals with each of the alleged defects in representation, explaining that many of the points now said not to have been made, were made.  She questions whether, in any event, the test for defective representation set out by the Lord Justice Clerk (Gill) in Grant v HM Advocate 2006 JC 205 (at para 21) has been made out.

[6]        In the replies from the appellant’s representatives, senior counsel has explained the nature of the preparation.  He has essentially refuted the alleged faults claimed by the appellant.  He has pointed out the errors in the appellant’s approach and the dangers which he perceived to exist in calling the supposedly supportive witnesses.  Junior counsel has agreed with senior counsel.  Agents have also provided a letter stating why they carried out certain investigations and, in particular, their approach to the civil proceedings.

[7]        The application for leave to appeal proceeded to first sift, where the judge stated that there was no arguable ground of appeal.  The second sift judges agreed, except in relation to a possible erroneous recording of one of the verdicts (charge 4) as guilty instead of not guilty.  In a detailed note, the court referred to the test in Grant and explained that it had simply not been made out.  The decisions made in the trial process had been matters of judgment and strategy.

[8]        At the hearing today, it has been said that the second sift judges applied the test in Grant too rigidly.  There is a particular criticism that, in the absence of agents obtaining the relevant evidential material, counsel had not been in a position to make the appropriate strategic decisions.  The material ought to have been recovered and used at the trial.

[9]        This is a section 107(8) application in which the applicant seeks to found upon a ground of appeal for which leave has not been granted.  It is not to be seen as a form of appeal against the decisions on leave to appeal at sift.  These decisions are final at that stage of the proceedings.  The applicant has to demonstrate good reason, beyond mere arguability, justifying resurrection of what are, in this case, the rejected grounds, such as a patent error or misunderstanding on the part of the sifting judges, or circumstances where a ground is so important that it would be contrary to the interests of justice to exclude it (Birnie v HM Advocate 2015 JC 314, LJC (Carloway) at para [8], following Beggs v HM Advocate 2006 SCCR 25, LJG (Cullen) at para 5).

[10]      So far as the argument which has been presented to the court is concerned, it is essentially simply one which challenges the second sift judges’ decision as being erroneous.  There does not appear to have been any misapplication of the test in Grant.  Indeed the judges referred to it expressly and applied it accordingly.  There have been detailed responses by counsel and agents in relation to the allegations of defective representation.  The trial judge has given a full report of the circumstances in which she considers that the defence case was presented in a strong manner.  In all these circumstances, the test set out in Birnie and Beggs has not been met.  The application is therefore refused.