Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 45

HCA/2016/000201/XC

 

Lord Menzies

Lord Malcolm

Lord Turnbull

 

OPINION OF THE COURT

delivered by LORD TURNBULL

in

APPEAL AGAINST CONVICTION

by

MOHAMMED RAZZAQ

Appellant

against

HER MAJESTY'S ADVOCATE

Respondent

Appellant:  Jackson QC, Dean of Faculty, Mitchell; Fitzpatrick & Co

Respondent:  McSporran, Solicitor Advocate QC; Crown Agent

22 June 2017

[1]        On 5 February 2016 the appellant was convicted by a majority verdict in the High Court at Glasgow of a charge in the following terms:

“On 16 January 2000 at [address] Glasgow you did assault MR, your wife, residing there, forcibly remove her underwear, ignore her when she told you no and attempted to push you away, penetrate her vagina with your fingers, force her legs apart and penetrate her vagina with your fist whereby she lost consciousness, to her severe injury and to the danger of her life.”

 

[2]        The appellant was granted leave to appeal on a ground which stated that there had been a miscarriage of justice on the basis of the existence and significance of evidence which was not heard at his trial.  That evidence comprised the testimony of Lauren McDonald, Sofia Syed and Kelly Doyanc.  

 

Background
[3]        The appellant and the complainer were married and lived together at the locus of the crime from about 1999.  At the trial the complainer’s evidence was that there had been difficulties in their marriage.  She was very young and already had a child to the appellant who was born in 1998.  She had regrets about getting married because of her age.  She was required to perform domestic and marital duties at the appellant’s request.  She claimed that the appellant was always having affairs.  They separated in about 2012 prior to being divorced.

[4]        The incident forming the basis of the charge was not reported to the police by the complainer in any fashion until around February 2013, when she spoke to an officer in the domestic abuse investigation unit but did not give a statement. She later moved to Manchester and subsequently a formal statement was made to police officers there.

 

The Evidence Relied Upon By The Crown At Trial
[5]        The Crown relied upon the evidence of the complainer who described the events of 16 January 2000.  She said that the appellant had been out until the early hours of the morning with friends and returned home intoxicated.  The complainer had waited up for him in the living room and was wearing a nightgown and underpants when he returned.  He wanted to have sex but she was unwilling to do so.  Without any display of affection he pulled her forward from the chair on which she was sitting and penetrated her vagina with his fingers.  Her underpants were removed in circumstances which she could not recall and the appellant forced her legs open.  He was abusive towards her and then inserted his fist inside her vagina with what she described as immense force.

[6]        The appellant’s conduct caused her extreme pain.  She was screaming and immediately began to bleed very heavily.  The next thing she remembered was paramedics taking her to an ambulance.  She had been unconscious prior to their attendance and did not know how much time had passed.  She was still bleeding heavily in the ambulance.

[7]        On arrival at hospital heavy vaginal bleeding was noted and the complainer required resuscitation involving receipt of intravenous fluid and blood transfusion.  In the operating theatre it was ascertained that there was arterial bleeding coming from a tear high in the vagina which was 2 to 3 cm long.  There were also lacerations noted in the left side of the vaginal wall but these were considered very small.  Sutures were inserted to repair the tear. The extent to which she had lost blood caused concern and constituted a risk to her life.  Had the blood which she had lost not been replaced and had the bleeding continued death would have been possible.

 

The Appellant’s Defence
[8]        The appellant lodged a special defence of consent which he supported in his own evidence.  He denied any acts of violence or compulsion.  His evidence was that he and the complainer had been at home on the evening of 15 January 2000 having a family dinner with his brother and his partner, Ms Jamie O’Neill.  He did not drink.  After the guests left around 3am he and the complainer engaged in amorous and intimate conduct.  After having sexual intercourse they experimented with a deodorant can which he inserted inside her vagina.  He said that this was something which they had done previously and that the complainer handed him the can on this particular occasion.  Once the can was inserted blood started to come out and he stopped.  He and the complainer thought that she was miscarrying, as they both thought she was pregnant.  He called for an ambulance and explained that she was suffering a miscarriage.  He accepted inserting his fingers into her vagina but explained that he had not used any force and he denied inserting his fist into her vagina. Ms O’Neill was listed as a defence witness but was not called to give evidence.

 

Independent Evidence Relating To Injury

[9]        The only two witnesses present at the time the injury was caused were the complainer and the appellant. Opinion evidence was elicited from the medical witnesses as to how the injury observed might have been caused. That evidence was that a deodorant can was capable of having caused the injury, as was a penis and a fist. The injury would raise the suspicion that a sharper instrument than a penis had been used.

 

The Basis Of The Appeal
[10]      In order to understand the basis of the appellant’s appeal it is necessary to set out a little more of the evidence led at the trial.

[11]      One of the paramedics who attended at the complainer’s home was Kathryn Simpson.  In her evidence she said that she remembered the events.  She arrived at around 0745 hours and was there for around 20 to 25 minutes.  She found the complainer in the bathroom and saw a lot of blood.  The complainer was anxious and upset but able to communicate properly.  She told Ms Simpson she thought she was having a miscarriage and that she was about two weeks pregnant.  She was transported by ambulance to the Victoria Infirmary whilst the appellant remained in the flat with their child.  In the course of the journey the complainer continued to bleed heavily and Ms Simpson said to her that the bleed did not fit with a miscarriage and that if something else had happened she should mention it.  The complainer then told Ms Simpson that she and her husband had been having sex and that her husband had been penetrating her with a deodorant can.  Ms Simpson’s evidence was that at no time during her contact with the complainer was she unconscious.

 [12]     Ms Simpson’s evidence of what had been said to her by the complainer was introduced under the authority of section 263(4) of the Criminal Procedure (Scotland) Act 1995, the complainer having previously been examined on the matter.  According to the trial judge’s report, when this comment was put to the complainer her evidence was that she had no memory of saying anything to the paramedic about having sex with her husband, or of saying anything about being penetrated with a deodorant can. She was prepared to accept that she might have said so, but whether or not she did, it was not in fact true.

[13]      Evidence was also given by Ms Victoria Morrison, who was a nurse at the Victoria Infirmary.  Ms Morrison gave evidence of her contact with the complainer from her being admitted to the ward at around 09.00 until she was taken to theatre at 09.50.  This witness also spoke to entries in the hospital records which were taken from the patient.  One noted a query as to whether she was 6 weeks pregnant. Others, under the heading of “History”, noted the following:

“+ve preg test 1/51 ago.”

            “Intercourse with partner this am-penetrated (with) deodorant can.”

[14]      When questioned about the medical entries the complainer denied that any such information could have come from her since she was unconscious.  She suggested that it might have been something said by the appellant.

[15]      In his report to this court the trial judge observed that the jury had before them evidence from independent and impeccable sources, in the form of medical personnel, that the complainer had made a statement or statements shortly after the event which directly contradicted her account and supported that of the appellant.

[16]      In his closing speech the advocate depute did not suggest that the medical witnesses were wrong in their recollection but invited the jury to attach no weight to what the complainer had said given the circumstances in which the comments were made.  The trial judge reported that the jury appeared to have taken up the advocate depute’s invitation.

 

The Proposed Additional Evidence

[17]      Against this background the appellant sought to rely on the evidence of Lauren McDonald, Sofia Syed and Kelly Doyanc, each of whom had known the appellant and the complainer to varying extents.  In summary, it was contended that each of these witnesses could speak to hearing remarks made by the complainer, in the years prior to the trial, to the effect that she had engaged in consensual sexual experimentation with the appellant involving the use of a deodorant can which had resulted in her being injured and requiring hospital treatment, and that these remarks related to the event about which the complainer had given evidence at the trial.

[18]      In order to determine whether the appellant could establish that there was a reasonable explanation of why this evidence was not heard at the trial, and to determine whether, if so, the appeal ought to be granted, the evidence of each of these three witnesses was led by the Dean of Faculty on behalf of the appellant and each was cross‑examined by the advocate depute.

 

Lauren McDonald

[19]      Lauren McDonald, aged 30, is a qualified hairdresser.  In around 2013 she responded to an advert placed by the appellant and the complainer and obtained a job in the hairdressing and beauty salon which they operated in Glasgow.  Prior to working there she did not know either of them.  Although she only worked in the salon for a few months, Ms McDonald’s evidence was that she became quite friendly with the complainer and socialised with her on a number of occasions in pubs and clubs in Glasgow, both while she worked in the salon and after leaving.  On one occasion the witness and a friend of hers invited the complainer to join them on a weekend trip to Manchester.  Ms McDonald explained that by the time she was working in the salon the complainer and the appellant were not really together as a couple and she rarely saw the appellant.  On her evidence she last saw the complainer socially sometime during 2014.

[20]      Ms McDonald gave evidence about an occasion when she was late for work having had to go to her doctor. She explained that she discussed this with the complainer, informing her that her condition had been caused by sexual intercourse. During that discussion the complainer responded by recounting a story about a sexual encounter with the appellant which the witness thought she had said occurred before she was married.

[21]      She explained that the complainer told her that she and the appellant were experimenting with an object like an aerosol can or something which became stuck inside her as a consequence of which she had to go to hospital and get stitches.  On this witness’s evidence the complainer was laughing about the incident when she recounted it.

[22]      Ms McDonald gave evidence that she had not been in touch with the complainer since sometime around 2014.  She moved to work in different premises and then spent some time abroad.  She had been unaware of any complaint made by the complainer against the appellant and had not known of his trial until returning from a few months abroad in February 2016.  She explained that through hairdressing clients in the Asian community she learned that the appellant had been convicted of some form of sexual attack and was serving a prison sentence.  She contacted Jamie O’Neill through Facebook and subsequently learned from her that the appellant had been convicted of an assault on the complainer. She was told that it involved the use of an aerosol can and was said to have occurred many years ago.  She then informed Ms O’Neill about the conversation which she had with the complainer.

 

Sofia Syed

[23]      Sofia Syed, aged 28, had known the complainer since she was quite young, although they were no longer on speaking terms. Her father had been friendly with the father of the complainer for more than 30 years.  When the complainer herself was younger she had spent some time living in this witness’s household and the complainer had been introduced to the appellant in that household.  The witness’s father was also friendly with the appellant’s father.

[24]      Ms Syed’s evidence was that she trained as a nail technician and then obtained employment in the beauty salon operated by the complainer at a point after Ms McDonald had left.  Her evidence was that by the time she worked there the complainer had a new boyfriend and she babysat for her children on a number of occasions so that she could go out with him.

[25]      Ms Syed testified that the complainer was open about her sex life in discussion with her. She had also heard from her own mother about a sexual incident involving the complainer and an aerosol can.  Ms Syed testified that there was an occasion when she was in the complainer’s house and was shown some new underwear which the complainer had purchased in advance of visiting her boyfriend.  Sex toys were shown to her as well.  Ms Syed testified that she made a remark to the complainer to the effect that she had heard what had happened between her and the appellant and that she knew she was “a kinky bitch”.  This prompted the complainer to tell her that the appellant had inserted an aerosol can inside her as a consequence of which she was cut quite badly and had to go to hospital.  According to Ms Syed the complainer told her that an ambulance had been called and that she had been embarrassed because she had to tell the ambulance and hospital staff what had happened.

[26]      On the evidence given by Ms Syed, both her family and the appellant’s family knew about the incident involving the aerosol can before the complainer told her about it. She said that this was because Asian women tend to spend time with their family and it had featured often in conversations amongst the women.

[27]      Ms Syed’s evidence was that she had not known that the appellant was facing trial and only learned in 2016 from her own father that he had received a prison sentence. Her evidence was that when she enquired what he was in prison for her father told her that it was something to do with a can years ago. On hearing this she was prompted to tell her father that she knew about the matter.  Subsequently her father put her in touch with the appellant’s solicitors.

 

 

Kelly Doyanc

[28]      Kelly Doyanc is a 38 year old married woman who has lived in Bathgate for a number of years.  She is a cousin of Jamie O’Neill and through her knew the appellant and the complainer.  

[29]      Mrs Doyanc explained that she and Ms O’Neill were close friends who kept in touch regularly through social media and telephone calls.  In around 2009 she went with Ms O’Neill to an Ann Summers party at the complainer’s house.  There were items such as underwear, sex toys, fake penises and vibrators on display at the party.  She testified that at one stage the complainer said words to the effect: “ladies you have got to be careful if you’re using something like this”, referring to one of the sex toy objects.  She went on to say that she and her husband had experimented with something and she had ended up in hospital.  Mrs Doyanc stated that the complainer was talking about the incident in an open and comical manner as if she thought it was funny.

[30]      Mrs Doyanc’s evidence was that she had not known of the appellant’s trial or of the fact that he had been convicted until an occasion when she was visiting her aunt, Ms O’Neill’s mother, in 2016.  She then contacted Ms O’Neill to find out more information and learned from her that he had been convicted of raping the complainer as a consequence of which she had ended up in hospital.  Mrs Doyanc understood that the rape was said to have occurred on an occasion around the same time as the Ann Summers party which they attended.  Discussion turned to the party and Mrs Doyanc mentioned what she remembered of the comments made by the complainer.

[31]      Mrs Doyanc acknowledged being surprised that her close friend Ms O’Neill had not mentioned anything of the appellant’s impending trial to her, or anything of his conviction. However, she surmised that Ms O’Neill had not wished to burden or upset her.  Mrs Doyanc had a baby in December of 2015 and had been receiving treatment for a serious illness.

 

Further Evidence
[32]      In addition to these witnesses the appellant gave evidence briefly and the complainer was led in evidence by the Crown.

[33]      The appellant’s evidence was to the effect that he had not known of the comments made by his former wife to any of the witnesses and had not appreciated that other family members had known about the incident with the aerosol can.  It was not something which had been raised with him or talked about in his presence and he had not mentioned it out of embarrassment.  He had only told one of his brothers about the impending trial and his other family members, including his father, did not know about it until the very end of the trial.  On being questioned about why Jamie O’Neill had been cited as a defence witness at his trial and what she was able to contribute, his evidence was rather contradictory and unsatisfactory.

[34]      The complainer denied making any of the comments which the witnesses had described and offered various explanations as to why they had given the evidence that they did. These explanations concerned friendship or association with the appellant and his family or were related to enmity which the complainer explained had been displayed towards her for various reasons.

[35]      Any evidence which Jamie O’Neill might have been able to give could, of course, have been led at the appellant’s trial. Her evidence therefore did not contribute to the submission that there had been a miscarriage of justice. Nevertheless, the court had before it the content of her pre-trial precognition and a supplementary affidavit. These documents disclosed that she did not mention the conversation at the Ann Summers party at precognition, because, she claimed, she had not been asked about it or was not thinking about it when she gave her precognition.  

Submissions
[36]      In concise submissions, the Dean of Faculty contended that there was a reasonable explanation for the additional evidence not being heard at trial. He submitted that prior to his trial the appellant was not aware of the conversations which the complainer had entered into with other women and there were no reasonable steps which he could have taken in preparation for trial which would have uncovered the availability of this evidence. He submitted that the evidence now available was of such significance that the appeal ought to be granted.

[37]      On behalf of the Crown, the advocate depute’s principal submission was that the appellant had failed to demonstrate that there was a reasonable explanation of why the additional evidence had not been heard at the trial.  He founded on the appellant’s own evidence to the effect that he had told Jamie O’Neill about the incident with the can and had learned that in fact she already knew of it from the complainer.  He submitted that further investigations with Ms O’Neill would have identified Kelly Doyanc as a witness.  He submitted that if the evidence of Sofia Syed was to be accepted then it was legitimate to infer that the appellant would have known that other members of his family had discussed and were aware of the circumstances surrounding the complainer’s admission to hospital. He submitted that in this context it was reasonable to assume that enquiries within the appellant’s family would have disclosed that Ms Syed could speak to the comments made by the complainer.

[38]      The advocate depute also drew attention to the absence of any information from the solicitor or counsel who acted for the appellant at trial concerning the extent and scope of any investigations which they carried out.  He drew attention to what had been said in the case of WB v HM Advocate 2014 SCCR 376 about the importance of such information and submitted that the evidence given by the appellant himself cast no light on why enquiries were not carried out. He drew attention to the information available concerning Jamie O’Neill which demonstrated that she claimed to have been aware of the conversation said to have occurred at the Ann Summers party.  

[39]      In relation to the evidence given by both Lauren McDonald and Kelly Doyanc the advocate depute submitted that there were questions as to the credibility of the testimony given which cast doubt on whether it could be said that the evidence was sufficiently significant to meet the test for a fresh evidence appeal.

[40]      In conclusion, the advocate depute invited us to grant authority to the Crown to bring a new prosecution if we rejected his submissions and instead gave effect to those presented on behalf of the appellant.

 

Discussion

[41]      The evidence which is relied upon in the present case is hearsay evidence but it is available from witnesses who claim to have heard the account directly from the complainer. There is no suggestion of any more than one incident which led to the complainer being hospitalised with internal bleeding and requiring stitches.  It is reasonable to infer that what the witnesses claim to have been told about is the same incident as the complainer gave evidence about in the trial against the appellant.  The evidence would therefore be admissible in terms of section 263(4) of the 1995 Act.  However, before that evidence can found a successful appeal, the conditions of section 106 of the Act require to be met.

Reasonable Explanation
[42]      Section 106(3)(a) and (3A) of the 1995 Act provide that, by an appeal under subsection (1) of that section, a person convicted on indictment may bring under review an alleged miscarriage of justice based on the existence and significance of evidence which was not heard at the original proceedings, provided that there is a reasonable explanation of why it was not so heard.

[43]      It is section 106 sub-section (3A) which contains the requirement for that reasonable explanation. The case of Campbell v HM Advocate 1998 SCCR 214 provides guidance as to the import and application of that sub-section. That guidance can be summarised in the following propositions. First, if there is not a reasonable explanation of why the evidence was not heard at the trial then questions as to the effect which it might have had at the trial do not arise for consideration. Secondly, the onus is on the appellant to provide a reasonable explanation for the failure to call that evidence at trial. Thirdly, it is not sufficient for an appellant to state that he was not aware of the existence of the witness or, where he was aware of the existence of the witness, that he was not aware that the witness was able or willing to give evidence of any significance. It may be sufficient for the appellant to show that he had no good reason for thinking that the witness existed, or, as the case may be, that he would give the evidence in question. Fourthly, the court should have regard to the interests of justice according to the circumstances of the particular case and the underlying intention of the legislation is that the court should take a broad and flexible approach. Fifthly, it is enough for the appellant to persuade the court to treat the explanation as genuine and he does not require to show by full legal proof that it is true.

[44]      Each of the witnesses whom the appellant relies upon has the same explanation for not volunteering the information prior to his trial which they now claim to be able to give. In relation to Lauren McDonald that explanation is more straightforward than it may seem to be in relation to each of the other two witnesses.  In their cases it is correct to acknowledge that there are question marks over the credibility of the account which they gave of having no knowledge of the appellant’s trial, despite their associations of family and friendship. However, they do each have an explanation which includes a reason for their state of knowledge and their explanations have not been shown to be untrue.  

[45]      The appellant’s own evidence was that he had no knowledge of any discussions between the complainer and any of her female friends.  He was also unaware of any general knowledge or talk amongst the female members of his family about the circumstances of the event which led to the complainer being hospitalised.  In these circumstances it was submitted on his behalf that there was no basis upon which he could have been expected to instruct solicitors to carry out enquiries into whether any witnesses could be found who could speak to being told about the event by the complainer.

[46]      In the case of WB v HM Advocate the court was considering an appeal brought under section 106(3)(a) of the 1995 Act which concerned evidence said to come from three relatives of the appellant about comments which they claimed had been made to them by one of the complainers prior to the trial.  The court observed that there was no evidence before it in the form of an affidavit or a statement from either the appellant or his former agents that the conversation was not known to the appellant or his legal advisers.  It observed that there was no evidence about what consideration was given by agents, in consultation with the appellant or otherwise, about any enquiries of members of the appellant’s extended family. It stated that in the future the court expected that material of that type would be made available in such cases.

[47]      In the present case there was some evidence from the appellant himself but he gave no evidence of any discussions which he had with his former agents about any lines of enquiry which might be pursued and no information has been provided from those agents. The Dean of Faculty advised us that there was something of a complication in that regard. There was more than a suggestion that the solicitor who acted for the appellant at the trial had been in some form of contact with the complainer. He may have acted professionally for her at some stage prior to acting for the appellant. There had been some enquiries made of him by the appellant’s new solicitors but it had become plain that there would be no information forthcoming.

 [48]     There is a degree of confusion about how and when Jamie O’Neill came to know about an incident with an aerosol can. There is also a question mark over why she did not speak at pre-trial precognition about what she claims to have heard the complainer say at the Ann Summers party. However, it is not obvious how even the most diligent enquiry with her could have led to discovering the evidence now available from Lauren McDonald and Sofia Syed.  At most it might have led to Kelly Doyanc.

[49]      In light of the content and quality of the evidence to which we have referred, and taking account of the submissions made by the Dean of Faculty, we are persuaded that we should, in having regard to the interests of justice in this particular case, take a broad and flexible approach. In doing so we are prepared to accept that the appellant had no good reason for thinking that the witnesses now relied upon would be able to give the evidence in question. We are also persuaded that there were no enquiries which the appellant could reasonably have been expected to have initiated which would have uncovered the additional evidence.  We are therefore prepared to accept that he has discharged the onus of providing a reasonable explanation for the failure to call that evidence.

 

The Significance Of The Evidence

[50]      In Al Megrahi v HM Advocate 2002 SCCR 509 the court held that it was for the appellant to demonstrate that the additional evidence was of such significance that the fact that it was not heard at the original proceedings must be regarded as a miscarriage of justice.  As the Lord Justice General explained, this means that the court must be satisfied that the evidence is capable of being regarded by a reasonable jury as credible and reliable and, if so, 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.

[51]      The critical issue at the appellant’s trial was how the complainer’s injury had been caused.  There was a direct dispute between the complainer and the appellant on this matter. The import of the medical evidence was that the injury could have been caused by either explanation.  The jury could not have convicted the appellant unless they were satisfied beyond a reasonable doubt that the complainer was truthful and reliable in the account which she gave.  The verdict returned demonstrates that a majority of the jurors were so satisfied, despite the evidence given by the paramedic and the nurse as to the accounts given to them by the complainer.  The Crown’s approach was to suggest to the jury that what the complainer may have said to the medical witnesses was of no importance given the circumstances in which the comments were made, namely her weak and distressed condition.

[52]      Quite different considerations would apply to the comments said to have been made by the complainer to the additional witnesses years after the event.  The complainer denies making such comments.  Unlike comments made in the course of traumatic events, there would be no basis upon which the Crown could invite the jury to ignore similar comments said to have been made on different occasions years later. At a trial in which such evidence was led it would be difficult to imagine the Crown suggesting that such comments were of no importance.  It would be more likely that the jury would be invited to choose between the evidence of the individual witnesses on the one hand and the complainer on the other.  If the jury accepted the evidence of the additional witnesses that would place the earlier comments in a different light and it would seem likely that the credibility of the complainer would be undermined significantly.

[53]      In the case of Al Megrahi the court also made it plain that the decision on the issue of the significance of the additional evidence is for the appeal court. As the parties to the present case both submitted, this means that the members of this court require to bring their combined experience of criminal proceedings to bear in that assessment.  We can also derive assistance from the helpful report provided to us by the trial judge in terms of section 113 of the 1995 Act. As required by that section, his report contained his opinion on the case generally and on the grounds contained in the Note of Appeal. On page 11 of his report he said the following:

“It struck me at the time that another jury on another day might well have acquitted the appellant. I do not know what impression the various witnesses will make nor what the complainer will have to say about their evidence but at face value it respectfully seems to me that the verdict might well have been different had this evidence been heard.”

[54]      Whilst the evidence given by the additional witnesses was contradicted in the testimony given before us by the complainer, and whilst we do require to consider the quality of that evidence in point of both credibility and reliability, it is not for us to adjudicate upon the competing testimony.  We are satisfied that within the additional evidence founded upon there is material which a reasonable jury could regard as credible and reliable and as establishing that the complainer made statements concerning the circumstances of the events of 16 January 2000 which were different from the account of events she gave at trial.  We are persuaded that evidence of this sort would be of significance in the context of what was the critical issue at the trial and that such evidence would have been of material assistance to a reasonable jury in considering that critical issue.  Having considered the whole evidence available, as we understand it to be, and applying our own judicial experience, we consider that the impact of the additional evidence is such that it can be said that the verdict reached in ignorance of its existence must be regarded as a miscarriage of justice.

 

Decision
[55]      In light of the assessment which we have arrived at we shall allow the appeal.