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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> NI, APPEAL AGAINST CONVICTION AND SENTENCE BY NI AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC_66 (06 November 2018)
URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_66.html
Cite as: [2018] ScotHC HCJAC_66, [2018] HCJAC 66
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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Lord Menzies
Lord Turnbull
OPINION OF THE COURT
[2018] HCJAC 66
HCA/2017/000338/XC
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION AND SENTENCE
by
NI
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Niven-Smith; Paterson Bell
Respondent: Goddard QC, AD; Crown Agent
6 November 2018
Background
[1] The appellant was convicted after trial at Edinburgh on 21 April 2017 of charges 1, 2,
4, 6, 7, and 9 libelled on the indictment. These were charges of indecent or sexual assault on
4 complainers, GG (charge 1) and GT (charge 7 and charge 9); and the repeated rape of both
FH (charge 2) and CJI (charge 4 and charge 6).
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[2] The Crown relied on the doctrine of mutual corroboration for a sufficiency of
evidence, each complainer having spoken to the terms of the relevant charge or charges. In
evidence CJI had asserted that her two children with the appellant, L and B (dob 15/1/16),
were both the product of rape, these rapes being libelled respectively as charges 6(a) and
6(b). The latter incident was said to have taken place when the complainer had returned
from a night out. The appellant had been looking after L, and when the complainer
returned he raped her. L was in the bed at the time and woke up during the incident.
Despite L waking up the appellant had continued to rape the complainer.
[3] In the course of her evidence the complainer admitted that she had lied to the police,
falsely maintaining that the appellant had sent her threatening text messages and an email.
She had in fact sent the messages herself. She had bought a second mobile and used it to
send threatening texts to herself. She had created a false email address to send a message
purporting to come from the appellant. She did so because she understood the appellant
had been released on bail and she was afraid of him. She was also cross-examined about
other untrue information she had supplied in her statement to the police. Consistent with
the appellant’s position in evidence, it was suggested to her that all sexual activity with him
had been consensual, but this she denied.
[4] The appeal is presented on the grounds that there is fresh evidence which “would
have significantly impacted upon the credibility of” the complainer. The fresh evidence is
said to come from two sources. The first is a witness, KHR, who refers to a conversation in
which the complainer described an instance of consensual sexual intercourse between
herself and the appellant as the occasion of the conception of B. The appellant had been
unaware of this conversation. KHR contacted the appellant’s solicitor during the trial, at a
stage where the jury had already retired, to advise of this conversation. It is submitted that
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had the defence been aware of, and able to lead this evidence it would have contradicted the
complainer’s evidence that the sexual intercourse leading to the conception of B was rape.
This contradiction from a prior inconsistent statement would have had a significant impact
upon the jury’s decision about the credibility of the complainer, and thus on all the charges
in respect of which her evidence was crucial.
[5] The second piece of fresh evidence concerns a message left by the complainer on a
Police Service of Scotland internet contact system. The message, left on 5 August 2017, was
in the following terms, as agreed in a Joint Minute of Agreement:
“My name is [CJI] and I am going to end my life tonight as I can no longer love [sic]
with the knowledge that I helped put an innocent man in the jail for ten years for
something that he didn’t do as everything that I said in Court about him was lies and
I can’t live with myself for doing that to him.”
As with the evidence of KHR, it is argued that if this evidence had been heard at the trial it
would have significantly impacted upon the credibility of the complainer CJI.
Sentence
[6] The appeal against sentence was not argued.
Evidence
[7] The parties entered in to a Joint Minute which, inter alia, confirmed that the message
had been left by the complainer. It was not the first that had been sent to the police by the
complainer. There had been a number. The police had treated them as “attention seeking”.
The same had been done with this one. Following a police investigation a summary
complaint was raised in respect of the offence of wasting police time. The Advocate Depute
confirmed the complainer had pled guilty to it. Sentencing has been deferred.
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[8] KHR, the appellant, and the complainer gave evidence at the appeal hearing, each
having provided affidavit evidence.
[9] KHR spoke to her relationships with the appellant and the complainer; her
recollections of the circumstances that led to the conversation with the complainer; her
knowledge of the trial; and her rational and the circumstances that led to her speaking to the
appellant’s solicitors. She could not recall the specific date or time of the conversation,
referring the likely stage of the complainer’s pregnancy as a reference for it. There were a
number of significant inconsistences between each of her sworn affidavits and the evidence
that she gave in court on issues of pertinence. When challenged on the matter her responses
were surprising.
[10] The appellant spoke briefly to his knowledge of KHR, his relationship with her, his
relationship with the complainer. He had no knowledge of the conversation between KHR
and the complainer. His position was that he could not reasonably have known about it or
the extent to which KHR could have assisted his defence. In cross examination his position
was that it would be unreasonable to suggest that he would have been required to
investigate people like KHR who were within the complainer’s circle of friends. He
acknowledged that his solicitors had taken statements from and had led evidence from his
mother and an ex-partner.
[11] The complainer gave evidence by video link. She spoke to her relationship with
KHR. While she accepted that she had told KHR by phone that she was pregnant with B
and that the appellant was the father, she disputed entirely that a conversation in person at
her flat in the terms suggested by the KHR had taken place. She accepted that she could not
recall the specific date of or the terms of the conversation. Her evidence was that she would
not have advised KHR of whether the conception had occurred via consensual sex or rape.
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She spoke to the message left with the police in August 2017, and her reasons for sending it.
She confirmed it was untrue. She regretted sending it.
[12] We shall return to pertinent issues concerning the evidence of these witnesses later.
No evidence was led from the court staff or others KHR spoke to, the appellant’s legal team,
or the friend from whom KHR claimed to have been informed, via Facebook, of the
existence of relevant press reports concerning the appellant’s trial. No press reports or
Facebook content were produced.
Submissions for the appellant
KHR’s evidence
[13] It was submitted that there was a reasonable explanation for this evidence not being
heard at the trial. The appellant had been entirely unaware of the conversation between
KHR and the complainer. There was no good reason for thinking that the appellant would
have been aware of the evidence KHR could give. There were no enquires which the
appellant could reasonably have been expected to initiate which would have uncovered the
evidence. KHR had only contacted the appellant’s solicitor during the trial and after the jury
had retired to consider their verdicts.
[14] It was submitted that there had been a miscarriage of justice. The conversation with
KHR was evidence which would have been capable of being used to undermine the
complainer’s credibility and reliability. It would have impacted significantly upon the
complainer’s credibility and augmented that of the appellant.
[15] The jury must have accepted the complainer’s evidence that as a consequence of rape
she had fallen pregnant with children L and B as being both credible and reliable in all
material respects, since they unanimously convicted the appellant of charges 6(a) and 6(b) to
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which this evidence related. It was not difficult to see why the jury accepted that evidence
and rejected that of the appellant. The complainer’s evidence was supported in general
terms by other complainers, specifically that of the complainer on charge 2. KHR’s evidence
was therefore significant, directly pertaining to charges 6(a) and 6(b), and undermining the
credibility of the evidence given by the complainer thereanent.
[16] If the jury had KHR’s evidence it would have been entitled to infer that the sexual
intercourse leading to the conception of B had been consensual, or at least been in reasonable
doubt as to the matter, leading to acquittal on charge 6(b). KHR’s evidence might also have
had the effect of undermining the complainer’s credibility on charge 6(a): for example if the
complainer had previously been raped by the appellant, why would she subsequently have
engaged voluntarily in sexual intercourse with him? This fresh evidence was particularly
significant as at the trial there had otherwise been little material available to undermine the
complainer on charge 6.
[17] The critical issue at the trial, in respect of the specific charges relating to the
complainer and the other charges for which her evidence was relied upon as corroboration,
was the credibility and reliability of the complainer. If KHR’s evidence had been seen as
reliable and credible the evidence would have been of a kind and quality that was likely to
have had a material bearing upon the jury’s consideration of that issue.
The message
[18] The message left by the complainer with the police happened after the trial. It is not
therefore evidence which could have been led at the trial and there is a reasonable
explanation for it not being heard.
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[19] The evidence consists of a voluntarily made statement from the complainer which
directly contradicts the evidence which she gave at trial. It is evidence which significantly
undermines the credibility and reliability of that evidence. Whilst there had been evidence
before the jury suggesting that the complainer was capable of making false allegations
against the appellant, the evidence of the message left with the police is of a different
character. The complainer justified the making of those accusations by reference to her fear
of the appellant, about whom she had already made complaints of rape, and who had now
been admitted to bail. In assessing her credibility, the jury might, have accepted this
explanation. No such explanation could arise in relation to the message left with the police.
The fake texts and email did not specifically relate to the allegations of rape, whereas the
present message does so.
Cumulative effect of fresh evidence
[20] It was submitted on behalf of the appellant that the cumulative effect of the two
additional pieces of evidence was greater than the evidence in their component parts: a
single piece of evidence may not tell the jury a great deal but together they might present a
very powerful picture. While each piece may have been enough to undermine the
credibility of the complainer, the combined effect would have been to have left the jury with
no doubt that the complainer was untruthful in respect of material parts of her evidence.
Mutual corroboration
[21] Finally it was submitted that as the Crown’s case was predicated on the doctrine of
mutual corroboration, with charge 2 relating to the rape of a separate complainer being
reliant upon the complainer’s evidence in relation to charges 4 and 6, if the fresh evidence
undermined the complainer’s credibility to the extent that the jury did not accept her
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evidence at all then they could not convict the appellant of charge 2 in so far as it was held
to concern rape.
[22] Although in the case and argument it was submitted that the fresh evidence was
heightened in importance as there had been little material available to undermine the
complainer on charge 6, this was not pressed significantly in argument, in light of the
substantial material which was available, and used, to attack her credibility and reliability
specifically in relation to the appellant and the nature of her relationship with him.
Submissions for the respondent
[23] The advocate depute submitted that in appeals of this nature the court required to
answer three questions in sequence. The questions, deriving from the court’s opinion in
(1) Whether there was a reasonable explanation for the evidence not being heard
at the trial?
(2) Does the appeal court accept the fresh evidence as capable of being regarded
as credible and reliable?
(3) Would the fresh evidence be likely to have a material bearing on, or a
material part to play in the determination by the jury of a critical issue at trial.
The assessment of whether the additional evidence would be likely to have been material to
the jury’s determination must be made in the context of the whole trial (Cameron v
KHR
[24] In respect of question (1), it was accepted that the requirements had been met in
relation to the message sent to the police as the message post-dated the trial. However, the
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question arose why KHR had not been precognosced. KHR was a person who had lived
with the complainer towards the end of her pregnancy with L, and had been close to her at
the time the alleged rape resulting in the conception of B occurred. The appellant knew this.
[25] In relation to question (2) it was submitted that the court had heard at first hand
inconsistent or fundamentally flawed evidence from KHR. An example was her evidence
concerning the circumstances surrounding the alleged conversation with the complainer. In
evidence she had said it occurred in a telephone call, then at the complainer’s flat that day or
soon after. This was different from the terms of the affidavit dated 26 July 2017. The
explanation for the reason for the conversation had varied from the loan of a buggy to
payment for it. There were fairly fundamental differences which made her credibility a
concern. The same could be said of her knowledge of the press article, its contents and the
circumstances which led her to contact the appellant’s solicitors. Her evidence was
inconsistent with statements given in her affidavits. The court would be aware of the
likelihood that an article would contain the complainer’s name - KHR had suggested it had.
The inconsistencies were central to her account, not on peripheral matters.
[26] In relation to the message, the court had heard commendable and frank evidence
from the complainer on the reason for sending it. If the court held that the content of the
message was unreliable then it did not require to consider question 3.
[27] In relation to question (3), for both pieces of evidence the court’s assessment of the
evidence had to include the context of the trial as a whole. Here the jury had convicted the
appellant of 6 charges involving 4 different complainers. The jury had found all 4 to be
credible and reliable in relation to the conduct libelled. They had spoken to conduct of a
similar nature where there was a close connection in time between some of the charges, a
factual distinction from Razzaq v HM Advocate.
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[28] KHR’s evidence was limited to a prior inconsistent statement relating to only one
episode in a charge that libelled rape on various occasions throughout a period in excess of
2 years with standout incidents being libelled (a) and (b). The contention that KHR’s
evidence would affect the complainer’s credibility in a broad sense must be seen in the
context of the evidence in the trial as a whole. The defence had considerable material with
which to attack the credibility of the complainer. This included prior inconsistent police
statements relating to the appellant. These inconsistent statements related to the entire
conduct libelled at charge 6(b) and were of far greater evidential significance compared to
the statement allegedly made to KHR. The jury had also been given further material to
attack the credibility of the complainer in respect of the false texts and emails sent by the
complainer, but purporting to come from the appellant.
[29] The message to the police should also be seen in the context of the whole evidence at
trial including the inconsistent statements made to the police and the false allegations and
behaviour associated with them. Reference was made to the joint minute. There was a
history of the complainer calling the police in what was described as “attention seeking”
behaviour which included statements that she intended to harm herself. It was agreed that
police officers against that background did not take her claim seriously at the time.
[30] Notwithstanding the prior inconsistent statements and the false messages the jury
had been unanimously satisfied that the complainer was telling the truth in relation to the
central issues of the charge libelled at charge 6. It was submitted that against that
background neither the alleged conversation with KHR nor the message to the police would
have been likely to have had a material bearing, or part to play in the determination by the
jury of a critical issue at trial.
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Analysis and decision
Miscarriage of justice and ‘fresh evidence’
[31] Where an appeal is made under section 106(3)(a) of the Criminal Procedure
(Scotland) Act 1995, after identifying the allegedly new or “fresh” evidence, as both parties
agreed, the first task of the court is to determine whether there is a reasonable explanation
for it not being adduced at the original trial. Only if an explanation exists would it then be
necessary to consider the effect such evidence might have had if it had been led at first
instance.
438. In summary the court must consider whether the fresh evidence would have been
capable of being regarded by a reasonable jury as credible and reliable (or the Advocate
Depute’s question (2)). If the court is so satisfied it must then consider the cogency of the
evidence. The evidence must be important and of such a kind and quality that it was likely
to have been found by a reasonable jury, under proper direction, to have been of material
assistance in their consideration of a critical issue that emerged at trial. It may only quash a
conviction if it is satisfied that the original jury, if it had heard the new evidence would have
been bound to acquit. If the court is not satisfied of acquittal it must be satisfied that the
additional evidence was not merely relevant but also of such significance that it would be
reasonable to conclude that the verdict of the jury, reached in ignorance of its existence,
must be regarded as a miscarriage of justice (the Advocate Depute’s questions (3) and (2)
respectively).
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KHR’s evidence
Reasonable explanation
[33] The evidence of the appellant was that he had no reason to think that KHR would
have any useful evidence to give on matters relevant to the trial. He said it would not be
reasonable to expect him to precognose all of the friends of the complainer, or himself, on a
speculative basis. While he had instructed the legal team acting for him to undertake some
lines of inquiry, which included taking statements and ultimately leading evidence from his
mother and an ex-partner, he had no reason to think that KHR could assist with his defence.
[34] While this court was surprised that KHR hadn’t been identified as a potential
witness given her close relationship with the complainer at material times, we do have some
sympathy with the general proposition put forward for the appellant on the level of
investigation that should have been undertaken specifically in respect of this case. In
Campbell and Steele v HM Advocate 1998 SCCR 214, Lord Justice Clerk Cullen (p 242C) stated
that the underlying purpose of section 106(3)(A) was “that the court should take a broad and
flexible approach in taking account of the circumstances of the particular case”. We are
accordingly of the view that in the particular circumstances of this case the threshold for a
reasonable explanation has been met. Practitioners are however reminded that no two cases
are the same. The level of consideration and investigation of witnesses must be conducted
with reference to and in the context of the case’s factual matrix.
Is the evidence capable of being regarded as credible and reliable?
[35] Importantly while we are not required to determine the credibility and reliability of
KHR’s evidence we do require to be persuaded that it is capable of being regarded as
credible and reliable by a reasonable jury. If and only if we are satisfied of that we are then
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required to consider whether such evidence was likely to have had a material bearing on or
a material part to play in the determination of the jury of a critical issue at the trial.
[36] We had the benefit of hearing the testimony of KHR at large and specifically on the
terms of her two prior affidavits in cross examination. We are not persuaded that her
evidence is capable of being regarded as credible and reliable by a reasonable jury. It is
likely that a jury would have come to a contrary view. The reasons for this are simple.
There were a significant number of inconsistencies in her evidence concerning issues of
materiality. Her evidence on the circumstances which led to her providing her recollection
of the conversation with the complainer’s solicitors was a notable example. In evidence she
first advised she had learned about the trial as a consequence of her friend posting an article
on Facebook about it. On further questioning her position was that a friend had called her
and read out the terms of the article first. The article had subsequently been posted on
Facebook. She stated at the hearing she had never read the article but had then contacted
the appellant’s solicitors. All of this evidence contradicted the terms of the affidavits she
had given. The first affidavit stated that she had followed the trial in the media and was
aware of the allegations the appellant faced. The second one suggested that she had been
sent a Facebook message with the article. Her recollections on whether the article read to
her or which she reviewed contained the details of the solicitors also changed. Her evidence
was that the article had named the complainer and provided details of her children, which
seems inherently unlikely. A number of these issues could have been clarified by the
production of further evidence for example a copy of the article or Facebook material she
referred to. Nothing had been produced. In totality her evidence on the circumstances
which had led to the conversation between her and the complainer was also fluid and
inconsistent. This was particularly troubling. In her first affidavit she stated that the
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conversation had taken place when she met the complainer to allow the complainer to
return a pram lent to her. This changed to an initial conversation over the telephone,
instigated by her when she contacted the complainer about money she owed in relation to a
pram. It was during the call, she stated in evidence that the complainer confirmed the
pregnancy. A meeting then took place in which the pregnancy was discussed further. The
specific date and time of the meeting or call could not be recalled. When challenged in
cross-examination on the discrepancies in her affidavits and evidence in court KHR made
attempts to try and explain away why certain things might not have been said in the
affidavits, rather than explaining why her evidence may have changed. She stated that
when giving her affidavits she did not think how and when the conversation had occurred
mattered, the fact it happened was the important thing.
[37] On the basis that we have found KHR’s evidence not capable of being regarded as
credible and reliable by a reasonable jury no further consideration requires to be given. The
appeal in so far as it relates to this piece of evidence fails.
The message left with Police Scotland
Reasonable explanation
[38] It was not disputed by the parties that there was a reasonable explanation as to why
the evidence was not heard in the original trial proceedings. The message was sent after the
trial. It was submitted that the requirement of section 106(3)(A) had been satisfied. This
court agrees.
Is the evidence capable of being regarded as credible and reliable?
[39] The appellant’s position was that the message was evidence of a statement
inconsistent with statements made by the complainer at trial. We heard evidence from the
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complainer confirming that she had written and sent the message and that the man referred
to in it was the appellant. Her position was that its terms were not true. She explained the
reasons for sending it. She saw it as a means of getting the help she needed with her mental
health and getting her children back. At the time it was sent she wasn’t coping and needed
help. She was in her own words having to deal with all of the things that had happened to
her. She had been suffering from mental health issues, consuming alcohol and abusing
painkillers and other non-prescribed drugs. Her children had been taken away from her
and placed in care. Social work had commenced their investigations when the allegations
against the appellant had come out. Her view at that time was that if she hadn’t given
evidence against the appellant her children would not have been taken away. All she
wanted was for her children to be returned to her. She thought that if she said her evidence
was untrue then the appellant would be released and that would assist with getting her
children back. She accepted now that her reasoning for the message was illogical and
flawed and that it would not have achieved what she wanted it to. She regretted sending it.
[40] In contrast to the first ground of appeal the evidence being considered in this
instance is not testimony but an actual written document. We are of the view that the
message, standing on its own, would be capable of being regarded as credible and reliable
by a reasonable jury. It is what it purports to be-an email sent by the complainer in terms
which are inconsistent with statements made at trial. If placed before a jury, the jury would
also have had the opportunity to hear the complainer’s evidence on the terms of the email,
its veracity and why it was sent.
Whether the evidence would have a material bearing on the jury’s consideration of a
critical issue
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[41] At trial the jury was required to determine whether the complainer had been raped
on a number of instances. As both parties submitted her credibility was an important issue
for the jury in making its determination.
[42] In “fresh evidence” appeals such as this, it is always crucial to view any additional
material relied upon in the context of the whole evidence laid before the jury in the original
HM Advocate supra, Lord Justice Clerk (Carloway) at para 21). In doing so the court may
take in to account the observations and assessment of the evidence by the trial judge. In this
instance the trial judge advised in his report that he found it difficult to state an impression
of the evidence which the complainer gave at the trial, though, importantly in our opinion,
he had no note or recollection of any adverse impression on her credibility. The trial judge
commented that, as the complainer was one of four at trial, he had little doubt that, the
existence of the other complainers had affected the jury’s assessment of the complainer’s
credibility and reliability.
[43] The issue for us to consider is what bearing, if any, the message would have had on
the jury’s determinations of material issue(s). As the court stated in WB v HM Advocate at
para [21] there can be a danger in ascribing to new evidence more significance than it would
have had at the actual trial. Such a danger is present here. When reviewed in isolation and
without reference to the complainer’s evidence on why it was sent and other matters
covered at trial then it had the potential to be seen as a matter of significance. When
considered within the entire context of the trial that is not the case.
[44] We are of the view that it pales in significance to other inconsistent statements made
by the complainer and the other material used to attack her credibility at the trial. It is clear
from the transcripts that the appellant had a considerable amount of material to attack the
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complainer’s credibility at trial. The material included other prior inconsistent statements
given by the complainer. In particular there was a statement given to the police in
December 2015. This statement had been given in the months prior to the birth of B, who it
had been submitted was conceived via rape. In it the complainer had stated that in her
relationship with the appellant “there was never any physical violence.” That she had
“never known [the appellant] to be aggressive in the slightest way and I have pushed him to
the limits sometime.” She had also stated that other than a report to the police to deal with
the recovery of her property from the appellant she had “never had any reason to report [the
appellant] to the police for any other reason.” These statements related to and were in stark
contrast to and inconsistent with the terms of the conduct libelled against the appellant.
[45] The jury also heard about a number of allegations that the complainer had made
about the appellant prior to the trial. They included purported texts and messages sent by
the appellant threating her life and general safety. Following an investigation by the police
it had been discovered that the complainer had gone to the lengths of purchasing a separate
phone and had sent the messages to herself. At trial and in examination in chief she had
admitted that the allegations were false and that she had bought the phone and had set up a
false email address. She also explained her reasons for this conduct which had included fear
of the appellant.
[46] Notwithstanding the seriousness of this conduct and the extent of the prior
inconsistent statements made to the police the jury held the complainer to be credible and
found the appellant guilty of the charges which concerned the complainer. Charge 6 was a
unanimous verdict. In our view the message accordingly pales in significance to this other
significant and potentially credibility challenging material. Accordingly we are unable to
conclude that the message is a piece of evidence of such significance that the verdict reached
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by the jury in ignorance of it was a miscarriage of justice. The appeal in relation to this
ground also fails.