APPEAL AGAINST CONVICTION BY FG AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 53
HCA/2015/002726/XC
Lord Justice Clerk
Lord Menzies
Lord Pentland
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
FG
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: G Jackson, QC Mitchell; John Pryde & Co
Respondent: I McSporran, Sol Adv, AD; Crown Agent
24 June 2016
[1] The appellant, FG, was convicted by a majority verdict of the jury on a charge of using lewd, indecent and libidinous practices and behaviour towards AB, born 1 December 1992, then aged between 7 and 11 years, on numerous occasions between 1 December 1999 and 30 August 2003. Further, there was a docket to the indictment which was in the following terms:
“TAKE NOTICE that the Crown intends to lead evidence that on a number of occasions between 1 December 2002 and 30 August 2003 at [two addresses in Dunfermline, Fife] the accused FG assaulted and raped the complainer in charges (001) and (002) on the indictment, namely Crown Witness AB.”
The appellant was sentenced to four years’ imprisonment.
[2] The complainer gave evidence that she had lived in family with the appellant for many years. She had understood him to be married to her mother, CD. The complainer gave evidence of the alleged abuse. In 2005 the complainer told her mother that the appellant had sexually abused her over a number of years. She then retracted that allegation. Allegations were again made in 2009. The allegation of rape appears to have been made first in 2014.
[3] The context in which the allegations were made in 2005 was that the complainer had been behaving badly and had incurred a significant telephone bill or bills in the family home. The complainer was cross-examined about that, on the basis that the allegations had been invented to deflect parental anger. She was also cross-examined about a number of inconsistencies in her account, and about the fact that the allegation of rape did not come until 2014, notwithstanding that the other sexual allegations had been reported to the police in 2009 and investigated at that time. There was also a suggestion that she had continued to have reasonable relations with the appellant after 2009, and that her mother had continued her relationship with him.
The 2005 allegations
[4] The complainer’s mother gave evidence that she had lived with the appellant for a number of years, knowing that he had another wife and children. They were married in a Muslim ceremony and she had regarded herself as his wife under Sharia law. She knew nothing of any untoward behaviour towards her daughter until around 2005 by which time they were living in Wolverhampton. When asked about a large phone bill (£1000-£1400) which had been received, the complainer had been cagey and her mother had said “I’ll get your father to sort this out”. At that point the complainer had made the allegations that the appellant had sexually abused her while the family were living in Scotland. On being contacted, the appellant, who was in Scotland, said that the allegations were untrue but that he would come down to England as soon as possible, which he did the following day. Because CD was at work when he arrived, the first opportunity she had to speak to him was when she returned home in the evening. The appellant confirmed that he had spoken to the complainer and she now accepted that the allegations were not true. In the presence of both CD and the appellant, the complainer said that she had made up the allegations because she was scared about the telephone bill situation. CD said that she had been angry with the appellant for speaking to the complainer outwith her presence, but she found it difficult to believe at that time that the allegations were true. She decided to accept the telephone bill explanation.
The 2009 allegations
[5] In 2006 CD and her children moved to rented accommodation in Falkirk. The appellant visited three or four times a week and sometimes stayed overnight. In early 2009 CD told the complainer that there was a possibility of the appellant coming to live with them permanently. Shortly after, the complainer claimed that it was true that the appellant had sexually abused her on a number of occasions over the years. The complainer, really for the first time, gave her considerable detail about the sexual acts which she said had been perpetrated on her by the appellant. CD was shocked, but said she now realised there was some truth in the allegations.
The first confession
[6] CD decided to try to elicit a confession from the appellant. The day after the complainer had spoken to her, CD and the appellant were in a vehicle on the way to Glasgow. CD said that she had been through the detail of what the complainer had said, including forced masturbation and oral sex. Initially, the appellant denied everything. CD said that she didn’t believe him, and that she could tell from his body language that he was lying. She added “If you tell me the truth it won’t go any further”. Whilst denying it at first, he then said “Yes, everything she said is true.” The following day CD attended at a police station to give a statement.
[7] In cross examination CD accepted that the complainer must have told her on Friday 6 March, and that she didn’t in fact speak to the appellant until the Sunday.
The second confession
[8] CD had arranged to meet the appellant in October 2010 after he had been at her home to visit his son. The appellant continued to say that the complainer was lying, which led to a public argument in a car park. CD was angry and called him a paedophile. For further details about that meeting she required to be prompted from her police statement, which records that she said to him:
“…You’re nothing but a paedophile…I said to him ‘You know you’re guilty’… He had a smug look on his face and said ‘I did it, I’ll do what it takes to protect myself’”.
She accepted that this was the truth, and said that was her last contact with the appellant. When it was put to her that it might be suggested that she was lying to ‘get back’ at the appellant, she said “[he] is not that special that I would do anything like that or waste my life.” She denied continuing a sexual relationship with the appellant after 2009.
[9] There was no prosecution after matters were reported to the police in 2009. Proceedings only commenced in 2014 after the complainer reported complaints of rape for the first time.
[10] The trial judge explains that CD was cross-examined about matters relating to alleged property and financial disputes between her and the appellant, saying that there was a considerable degree of hostility towards the appellant on the part of CD. CD denied having financial difficulties during the early part of her relationship with the appellant, or that she had repeatedly tried to persuade the appellant to divorce his wife. She denied that in 2009 the appellant indicated he was breaking off their relationship, and this is what had prompted her visit to the police. She said that by then the relationship was already distant. Various documents were put to her to suggest that she had attempted to continue the relationship, and to contact the appellant. She accepted that one seemed to indicate that she, using a different name, had sought to become Facebook friends with the appellant. She didn’t recall e-mailing the appellant asking to meet, but when it was put to her that she and the appellant had been to a named street together, she did recollect that but said the context was that she had told the appellant she had been to the police. She was shown e-mails apparently sent from her e-mail address to that of the appellant, sharing jokes, but she denied sending them and maintained that the appellant must have hacked into her e-mails. She denied saying on that occasion that she didn’t want to lose the appellant or that their relationship had started again. However, she subsequently accepted that the appellant had stayed at her house a couple of times in her bed but denied that sexual intercourse had taken place. At one point CD said “The only reason I put up with him was because I wanted to get a confession out of him”.
[11] She denied telling the appellant that she was finding it difficult to deal with her now estranged husband ED, a lawyer, as he was too highly educated for her. Rather the appellant had made remarks about ED and wanted her to end her relationship with ED. Numerous other incidents of contact with the appellant were put to her, but she either denied them or could not recall.
[12] She denied saying to a third party that she had wasted her life on the appellant and that she could make the case against him go away if she received the sum of £100,000. Her response was “I have funds. They don’t. Is that the best they can do? I don’t need their money”. She also denied saying that she would “bring [the appellant] to his knees” or that, under reference to the criminal proceedings against him she had said “It’s personal”. She agreed that she had raised Court of Session proceedings in relation to certain property disputes between her and the appellant.
[13] The appellant gave evidence during which he denied all of the allegations made against him, which he considered had been made in the context of a long running dispute between him and CD about whether he would leave his wife to be with her on a full time basis. He spoke to a number of occasions on which he had continued a sexual relationship with CD after the police investigation in 2009, and denied making any confession.
[14] It will be apparent that the complainer and CD were critical witnesses against the appellant. In her charge, the trial judge correctly directed the jury that unless they found both AB and CD credible and reliable they could not convict the appellant.
[15] The estranged husband of CD, ED, was cited as a defence witness but was not called to give evidence.
[16] The present appeal relates to fresh evidence from him which is said to be of such significance as to entitle the Court to conclude either (a) that if the jury had heard the evidence it would have been bound to acquit or (b) that the verdict of the jury reached in ignorance of that evidence must be regarded as a miscarriage of justice.
The new evidence
[17] The new evidence falls into two parts:
(i) It is asserted that just over a month after the trial ED had lunch with CD. She made it clear that she was satisfied with the verdict, stating “I got my revenge and I am moving to England and will return the matrimonial property to you”. ED has no doubt that this statement was made in the context of the trial.
(ii) In relation to property transactions that took place in 2004 when CD sold property to the brother-in-law of the appellant, she subsequently alleged, in court proceedings in 2014, and elsewhere, that her signature had been forged. When confronted with documentary evidence suggesting that she was involved in the transactions and that her signature was genuine, her response was to allege that the appellant had hacked into her account. This statement is alleged to have been made in March 2015. The day after she made this statement, she accused ED also of hacking into her account.
[18] The evidence of ED as to the statement concerning revenge is contained in an affidavit dated 27 November 2015 which was lodged with the original ground of appeal, and which states inter alia:
“On the 3 August 2015 I received a telephone call from CD telling me that she had good news and that she would like to meet for lunch. We met at Pizza Express in Morningside and we discussed our matrimonial affairs and I was of course aware that [the appellant] had been convicted on 3 July 2015 and was due to be sentenced on 7 August 2015. During our discussions in connection with our matrimonial affairs we spoke about the case and she said that [the appellant’s] lawyer ‘was crap and the Crown made mincemeat of the defence witnesses’. She took immense satisfaction in that and I asked her what her good news was and she said that ‘I got my revenge and I am moving to England and will return the matrimonial property to you’. I am in no doubt that her comment was made in the context of the trial. I have not seen her since and do not know her whereabouts.”
[19] Attached to the affidavit is an email sent that day from ED to both his solicitor and that of CD, confirming their discussion of the matrimonial property, and stating that CD agreed to transfer the entire titles of three properties to him as the sole title holder with immediate effect.
[20] The affidavit makes no reference to any allegations regarding hacking CDs account, whether made against the appellant or against ED.
[21] By letter dated 1 June 2016, the appellant’s agents lodged a supplementary note of appeal in which they sought leave to advance the ground of appeal relating to the hacking issue. The covering letter said “On 31 May 2016 the statement of ED was lodged with the court. After consideration of that statement it has become apparent that an issue has arisen in respect of additional material”. The “additional material” was the hacking issue. Para 1b of the supplementary grounds states:
“On or about 31 May 2016 the statement of ED became available. It is clear from the terms of the statement that a further significant matter relevant to the credibility and reliability of CD and directly affecting the evidence she gave in respect of the defence presented for the appellant is now available.”
The court allowed the supplementary ground of appeal to be advanced on a limited basis, leaving open the question of whether the material was relevant or would be admissible.
Evidence
[22] ED was called as a witness during the appeal. He gave evidence in relation to both matters to which the appeal relates. In relation to CD’s assertion that her signature had been forged in relation to the property transaction, ED spoke to attending a meeting at which she was shown documentation with emails purporting to come from her email address which “clearly demonstrated something was amiss” causing him to become ill at ease. When confronted with emails apparently sent from her own account CD responded by accusing the appellant of hacking into her emails saying he knew the password. ED explained that his relationship with CD did not continue after this. “It was already on the way out, that was the last straw”. The following day they both had to attend a meeting in Dunfermline and before attending the meeting she made comments to him suggesting that he too had hacked into her email account. She said “did you hack into my emails” or “you hacked into my emails”. The accusation was in relation to the same emails which had been under discussion in the meeting the previous day. ED was seething at this accusation.
[23] ED knew about the trial and that the allegation related to CD’s daughter. He was cited as a witness and was “on call” to attend court. On being told he was no longer required as a witness he assumed he could go into court and did so. When he went into court, witnesses were giving evidence although the trial was reaching its conclusion. He was asked whether he met a specific individual, Mr A and said that he did. They had chatted purely by accident. ED said he got off a 23 bus and saw Mr A, who recognised ED instantly although ED did not know him. They had a discussion about law involving Mr A’s daughter who was a trainee with a legal firm in Edinburgh. They went for a cup of tea. They chatted about the case, although the chat came first from Mr A. He told ED that CD said that the appellant had hacked her account. ED responded “she has accused me of that as well”.
[24] At some point after the appellant was sentenced ED was approached by friends or relatives of the appellant asking what could be done for them. He told them in blunt terms that it was improper for him to interfere with the advice of the solicitors involved. “I was clear I was not in a position to help them.” Asked what changed he explained there was another meeting with the brother of the appellant where the family were “trying every avenue to see if any help could be found”. The brother asked if ED would meet with the solicitor because of some comments made by him to Mr A. Accordingly, he went to see the appellant’s agent, whom he named. He then explained that following the trial CD asked to meet him and they agreed to meet at Pizza Express in Morningside Road. That was when she made the comment regarding revenge. ED took this as referring to the appellant. He was in no doubt that her comment was made in the context of the trial.
[25] In cross-examination he accepted that the comment on its own might be interpreted in a number of ways. A mother whose daughter had been abused might well feel satisfaction at the conviction of the abuser. He went on to say that at the time he was cited for the trial he did not know that the credibility of CD was an issue. He did not know that until he gave his affidavit post-trial. His attention was drawn to paragraph 3 of his affidavit in which he stated “I was cited as a defence witness in the case… I understand that the evidence to be elicited from me related to an attack by the defence on the credibility of CD. Counsel must have decided that such evidence was not necessary.” Shown this affidavit he then said “I stand corrected.” His understanding was that his own evidence would relate to CD’s credibility. When Mr A explained that CD had accused the appellant of hacking her account, ED recalled thinking it was important and serious. However he did nothing about it. He would at some stage have emailed the agents and referred to it, before the affidavit. He then went on to say, contrary to the impression given in his examination-in-chief that when he spoke to Mr A it was on the second day he attended the trial, the day of the jury speeches during a break in proceedings. When his evidence-in-chief was read to him he agreed that Mr A had told him this on the first day. He could have communicated with the appellant’s agents about the same accusation having been made to him but did not. He did so when asked to contact the appellant’s agents. He later clarified that the time when he went for tea with Mr A was when there was a break after the evidence had finished. He did not go for tea with him before going into court on the first day he attended the trial. In re-examination he accepted that he might originally have given the information about the hacking to former agents of the appellant rather than the agent whom he had named.
Submissions
[26] Mr Jackson referred to the case of Al Megrahi v HM Advocate 2002 JC 99 where the approach which the court should take in relation to an appeal of this kind was summarised in six propositions. The evidence of CD was crucial at the trial, as the trial judge made clear. The evidence of ED in both respects had a material bearing on a critical issue at the trial namely the credibility and reliability of CD. Even if the court did not accept his submissions relating to the hacking issue, the main thrust of the appeal related to her comments regarding revenge. The matter being of material importance, the verdict of the jury reached in its absence must be regarded as a miscarriage of justice.
[27] The fact that the alleged conversation at Pizza Express took place after the appellant had been convicted is the reasonable explanation as to why evidence about it could not be heard at the trial. In the context of cross-examination of CD to the effect that her evidence was motivated by animosity towards the appellant and a desire for revenge against him the new evidence would relate directly to the credibility and reliability of CD and would have been of material assistance to the jury in considering that crucial issue. It is evidence which the jury would be entitled to consider to be credible and reliable. The evidence is of such significance that either the jury hearing it would have been bound to acquit or their verdict reached in ignorance of the evidence must be regarded as a miscarriage of justice. In relation to the other element of new evidence it was submitted that the fact that CD made allegations against ED of having hacked her account, similar to the allegations made in relation to the e mails shown to her during the trial, apparently from her account to that of the appellant, would also have reflected adversely upon her credibility and reliability. The appellant had denied this, and the fact that CD had made similar accusations against ED would have been relevant and significant evidence.
[28] The advocate depute noted that this was not a case in which the fact of antagonism from CD towards the appellant only became apparent after conviction. The matter was fully canvassed at trial with efforts by the defence to show that the evidence of CD was untrue and motivated by malice. One additional piece of evidence supporting that particular line could not be viewed as material. A significant difficulty for the argument is the absence of the hacking point from the affidavit. In ED’s original evidence he said that he provided that information to the very agent sitting in court. The only source of the possibility that it was given to prior agents was a proposition put to him in re-examination with which he agreed. It was no light matter to set aside the verdict of a jury and under reference to proposition 5 in the Al Megrahi case the court had to be satisfied that the evidence was of such a kind and quality that it was likely a jury would have found it of material assistance in its consideration of a critical issue at the trial. That could not be said.
Relevant Law
[29] So far as relevant, section 106 of the Criminal Procedure (Scotland) Act 1995 provides as follows:
“(1) Any person convicted on indictment may, with leave granted in accordance with section 107 of this Act, appeal in accordance with this Part of this Act, to the High Court—
(a) against such conviction;
….
(3) By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on—
(a) subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings; …….
(3A) Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard.
………….”
[30] So far as the “revenge” evidence is concerned, it is not disputed that there is a reasonable explanation as to why the evidence was not heard in the original trial proceedings, the matter having arisen after the trial. The matter is less clear regarding the “hacking” evidence but we proceed on the basis that the explanation tendered is a reasonable one.
[31] In Al Megrahi v HM Advocate, 2002 J.C. 99, the court observed that in relation to an appeal of this kind (para 219):
“… the next question that requires to be addressed is the content of the proposed additional evidence, and whether its significance is such that the fact that it was not heard by the trial court could be regarded as having resulted in a miscarriage of justice. In that context, Mr Taylor referred to Cameron v HM Advocate and Kidd v HM Advocate. In the former case the approach which the court should take in an appeal relating to additional evidence was set out in the opinion of the court delivered by the Lord Justice General (Emslie) at pp 618–619. In the latter case, part of what the Lord Justice General said in Cameron was somewhat modified. We summarise the approach adopted in those cases in the following propositions.
(1) The court may allow an appeal against conviction on any ground only if it is satisfied that there has been a miscarriage of justice.
(2) In an appeal based on the existence and significance of additional evidence not heard at the trial, the court will quash the conviction if it is satisfied that the original jury, if it had heard the new evidence, would have been bound to acquit.
(3) Where the court cannot be satisfied that the jury would have been bound to acquit, it may nevertheless be satisfied that a miscarriage of justice has occurred.
(4) Since setting aside the verdict of a jury is no light matter, before the court can hold that there has been a miscarriage of justice it will require to be satisfied that the additional evidence is not merely relevant but also of such significance that it will be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice.
(5) The decision on the issue of the significance of the additional evidence is for the appeal court, which will require to be satisfied that it is important and of such a kind and quality that it was likely that a reasonable jury properly directed would have found it of material assistance in its consideration of a critical issue at the trial.
(6) The appeal court will therefore require to be persuaded that the additional evidence is (a) capable of being regarded as credible and reliable by a reasonable jury, and (b) likely to have had a material bearing on, or a material part to play in, the determination by such a jury of a critical issue at the trial.”
Analysis
[32] We start by considering the evidence in relation to the hacking allegation. In our view this evidence is not admissible. It is an entirely collateral matter unrelated to the issues in the trial. Even if it were not collateral, it is very difficult to identify any evidential worth which might attach to it. The evidence of ED on this matter in examination-in-chief was that following the second request from the appellant’s brother he went to see the appellant’s agent, whom he named and who was sitting in court. When questioned as to how it came about that the allegation was not in his affidavit, he said that he was surprised, because he had imparted the information. He was surprised the affidavit was so short, but he did nothing about it. He had viewed the matter as being an extremely serious and important one but had taken no other steps to draw it to the attention of appellant’s solicitor. The reasons for it having come to light so late in the day are not entirely clear. According to ED, the whole reason why the appellant’s brother urged him to go to the solicitors was the reference to the hacking allegation imparted to Mr A. It is difficult to understand why that allegation did not assume a greater significance at the time, or find its way into the affidavit or the original grounds of appeal, given the importance which ED attached to it. The information appears to have been communicated by ED to the original agents. In light of these factors, it is strange that ED did nothing about the fact that the affidavit he was in due course asked to sign was entirely silent on the hacking point.
[33] Turning to the “revenge” statement, the evidence on this matter was far from unequivocal. It consisted of one statement “I have got my revenge” with no context other than the view expressed by ED. The remark is one equally consistent with a vehement satisfaction at justice being done, from someone with a reasonable basis for harbouring animosity towards the appellant.
[34] Much of ED’s evidence was taken up with the question of the hacking allegation, partly due to the issue about whether the information had been provided to agents prior to 31 May 2016. Whatever the actual position about the time at which that information was imparted to the agents, at the time when the appellant’s brother first contacted ED for assistance (see para 24 above), one might have expected ED to mention the hacking issue, rather than say that he could not help them, especially given his evidence that this seemed to him to be an important matter. This is particularly so when his own understanding (whether or not it was correct) was that he had been cited to the trial to offer evidence in relation to the credibility of CD. It is not for us to make any comment regarding credibility or reliability of ED and we do not do so. However, we can say that his evidence was not overall of such a kind and quality that we could say that a reasonable jury properly directed would have found it to be of material assistance in its consideration of a critical issue at the trial.
[35] We remind ourselves that it is important to assess any new evidence in the context of the whole testimony adduced at the trial, and not to ascribe to the new evidence more significance than it would have had at the actual trial (W.B. v H.M. Advocate, 2014 S.C.C.R. 376, para 21). The evidence on the “revenge” statement is simply one more small adminicle which might support the hostility of CD towards FG, a matter which was well-stablished during the trial.
[36] We are quite unable to say that the verdict of the jury, reached in ignorance of any of the evidence in question must be regarded as a miscarriage of justice. For these reasons, the appeal will be refused.