Appellant: Shead, Mackenzie; George Mathers & Co., Aberdeen

Respondent: Ferguson, Q.C., A.D.; Crown Agent

17 March 2010

The background circumstances
[1] The appellant in this case faced an indictment containing two charges. He pled not guilty and went to trial. The trial took place in the High Court of Justiciary at Paisley between 30 July and 15 August 2002. Before the close of the Crown case, the Advocate depute was granted leave to amend the terms of the indictment. After amendment the terms of the two charges were as follows:

(1) between 16 and 19 December 2000, both dates inclusive, on Porterfield Road, Moorpark, Renfrew and at the house occupied by you at 2E Porterfield Road, Moorpark, Renfrew, you did assault JG ..., seize hold of her, detain her at said house against her will, seize her by the throat, apply pressure thereto, repeatedly punch and kick her on the head and body, and pull her hair all to her severe injury; and

(2) between 16 and 19 December 2000, both dates inclusive, at 2E Porterfield Road, Moorpark, Renfrew, you did assault JG ... and lie on top of her and have sexual intercourse with her without her consent and did rape her."

On 15 August 2002, the jury unanimously found the appellant guilty on charge (1), as amended, and, by a majority, found him guilty on charge (2), as amended. On 5 September 2002, the court sentenced the appellant to twelve years imprisonment to run from 15 August 2002, in cumulo in respect of the convictions on charges (1) and (2).

[2] The appellant has tabled a number of grounds of appeal against his conviction. One of these was to the effect that a miscarriage of justice had occurred in consequence of the trial judge having erroneously repelled a submission of no case to answer at the conclusion of the Crown case in relation to charge (2) in the indictment. That ground of appeal was the subject of consideration by this court at a hearing between 4 and 6 August 2009. At the conclusion of that hearing, the court concluded that that particular ground of appeal was well-founded. Accordingly the appellant's conviction on charge (2) in the indictment was quashed. The court's reasons for that decision are set forth in an opinion of the court, dated 8 October 2009.

[3] There is also before the court a further ground of appeal relevant to the appellant's conviction on both charges (1) and (2) in the indictment. That ground of appeal is in the following terms:

"Evidence is now available which is significant and would have had a material part to play in the jury's deliberations if it could have been led at the trial. The complainer was an essential witness in respect of both charges (1) and (2). The witness Patricia Belton had been included on the defence witness list but was not called to give evidence during the trial. Reference is made to the affidavit produced. If what is set out in the affidavit is capable of being regarded by a reasonable jury as credible and reliable it follows that there has been a miscarriage of justice. Having regard to the timing of her conversation with the complainer there is a reasonable explanation for the evidence not having been heard at the trial."

[4] The affidavit referred to in that ground of appeal has been produced. It was sworn by Patricia Belton at Paisley on 11 February 2005 before a Notary Public. Its contents are as follows:

"1. My name is Patricia Belton and I stay at 12 Queen Street, Paisley. My date of birth is 10^th October 1967. I have information which I believe to be crucial in the prospective appeal of William Gemmell Mackintosh.

2. I was named as a defence witness at the High Court trial against Mr Mackintosh however I was never called. After the trial and after Mr Mackintosh was imprisoned I was approached approximately two to three months later by the complainer in the case JG. She had been staying apparently in a homeless hostel and she came to visit me. She was clearly heavily pregnant. She stayed the weekend with me. During this stay she began talking about the trial and in particular about the time that she had stayed with Mr Mackintosh.

3. In the course of that visit she told me that Mr Mackintosh did not rape her and that the sex between them was consensual. She was quite specific. She said that they had had sex twice, once in a sleeping bag in the livingroom and once in Mr Mackintosh's bed. I was horrified that anyone could do such a thing causing someone to be sent to prison on a lie. I was unclear what to do and it was only fairly recently that I realised that Mr Mackintosh was appealing at which point I contacted Mr McLeod of George Mathers & Co., 23 Adelphi, Aberdeen who I found to be acting in the appeal."

[5] At the appeal hearing commencing on 4 August 2009, apart from there being consideration of the ground of appeal we have already mentioned, which was sustained, consideration was also given to the ground of appeal based upon the evidence of Patricia Belton. Counsel for the appellant pointed out that the credibility of the complainer's evidence was critical not only to charge (2) in the indictment, but also charge (1). He invited the court to hear the evidence of Patricia Belton, which bore on that, which we did on 4 August 2009.

[6] She explained that she had known the appellant for about ten years, having met him through a friend of a friend. He was someone whom she seldom saw. She was aware that he had been convicted of serious charges in 2002. She identified the affidavit which she had sworn, dated 11 February 2005. She explained that she had been cited as a defence witness at the trial of the appellant, but had not been called. The witness had known the complainer JG at the time of the trial for maybe a year. She described her as a passing acquaintance. She had met her about four months after the trial. At that time both the witness and the complainer were pregnant. The complainer had come to the witness's house for a coffee. There had ensued a discussion regarding the circumstances of the case. At that time the complainer had been living in a hostel. The witness decided to invite her to stay at her house, which she did over a weekend. In the discussions concerning the trial, the complainer had said that she could not remember about consenting to sexual intercourse with the appellant. She could not remember if the rape did or did not happen. Later she said that the appellant had not raped her. JG had said that she was applying for criminal injury compensation; it would have affected her compensation claim if she had gone to see the appellant's lawyer and said what she had just said. She was not prepared to do that. The witness said that she did not remember what the complainer had said to her regarding the number of acts of intercourse that occurred. The witness said that she had been shocked at the terms of the complainer's remarks. She was unable to remember exactly when this conversation had occurred.

[7] In cross-examination, the witness confirmed the extent of her acquaintance with the appellant. The witness had no first-hand knowledge of the incident which had given rise to the prosecution. The witness maintained that she did not socialise with the appellant, although she knew that he was a single man.

[8] As regards the complainer, the witness said that she had known her for about twelve years and had known of her before that. The complainer had worked "up the town as a prostitute". The witness's sister had also been a prostitute at the same time. The witness maintained that she could not remember why she had been cited as a witness in the case; she had no recollection of any statement having been taken from her by any solicitor. She had known of the charges at the trial and understood that she was there to speak as a character witness. In the event, she was not called to give evidence. She elaborated the circumstances in which she had come to meet the complainer prior to the conversation described. When the complainer came to leave the witness's house after the weekend in question, that was voluntarily; the witness had not thrown her out. The conversation concerning the case had taken place, it might be, on the Saturday night. The witness claimed that the complainer had effectively told her that she, the complainer, had lied in court. That was on the matter of whether intercourse had or had not been consented to. She had said that she had not been raped. The witness herself denied telling lies. She agreed that she had not gone to see a solicitor immediately after the conversation in question. Ultimately she had got in touch with Mr John McLeod, before whom she had sworn the affidavit. There had been a substantial gap in time between the conversation referred to and her taking that step. The witness maintained that she had not been in touch with the appellant himself, nor had she visited him in prison. As regards the complainer's position concerning sexual activity with the appellant, the complainer had said that she had had sex with him on two or three occasions on the couch and in the bedroom in his flat.

[9] The witness was aware that the appellant had been granted interim liberation. She had spoken to him on the morning when she gave evidence; indeed she and the appellant had come to the court together by bus. In answer to questions by the Advocate depute, the witness agreed that she had used a number of false names from time to time, including Patricia Sloan, Margaret Belton, Catherine Price, Patrice Shearer and Louise Symington. These were fictitious names. The purpose of the use of false names had been to divert police attention from her and thus to avoid arrest under an outstanding warrant. In other words, she had sought to avoid prosecution. She also agreed that she had lied to the police concerning her date of birth.

[10] At this point in the cross-examination the Advocate depute sought to put to the witness a record of her previous convictions, to which objection was made by counsel for the appellant. Counsel for the appellant submitted that there should be redaction of the record of convictions, although he did not make clear to the court why or to what extent that should be done. Accordingly we repelled his objection.

[11] The witness went on to explain that the various names that she had used to the police were fictitious. She had given the police three different dates of birth as her own. She had come to know the complainer JG through visits to her and her sister. She appeared to say that she had played a part in protecting the complainer when she had worked in the red light area of Glasgow between about 1989 and 1993/94. The witness herself had been convicted of loitering for the purposes of prostitution, in terms of section 46 of the Civic Government (Scotland) Act 1982. She had a large number of other previous convictions, including convictions for crimes of dishonesty and of attempt to pervert the course of justice. She had served sentences of imprisonment. She had also breached Bail Act conditions by committing offences while on bail. She had been convicted of theft and reset. She had also been convicted of offences under the Misuse of Drugs Act 1971. She had abused heroin by injecting herself. However, the witness maintained that she stood by what she had said concerning her conversation with the complainer.

[12] Asked in re-examination about what she had said to Mr John McLeod, she said that he had asked for a letter containing such information as she was able to impart relevant to the appeal. Accordingly she had written the letter dated 9 November 2004, production 20. The witness agreed that she had not always told the truth in the past, but maintained that she was doing so in giving her evidence.

[13] After the conclusion of the evidence of Patricia Belton, the Advocate depute submitted that the court should call the complainer to give evidence in response to the allegations made by the former. He explained that the Crown had been in contact with her and that she denied the allegations made against her by Patricia Belton. He moved the court to call her to give evidence in these proceedings. In opposition to that, counsel for the appellant submitted that to hear the evidence of the complainer now would give rise to difficult questions of law, although he accepted that the court would be assisted by doing so. The only question for the court was whether the evidence of Patricia Belton, not heard by the jury, was capable of being regarded as credible and reliable by a reasonable jury. After discussion, we concluded that the complainer should be called to give evidence in relation to the allegations made against her by Patricia Belton. Accordingly, at an adjourned hearing on 27 November 2009 we heard the evidence of JG, the complainer.

[14] She stated that she had been the complainer and had given evidence at the trial of the appellant in August 2002. She agreed that she knew someone called Patricia, whose name might also be Belton. However, she did not know her very well. She had not seen much of her since she, the complainer, had left the Renfrew and Paisley area. She had met her a few times before the appellant's trial. The complainer explained that, after the trial, she had been living in a hostel when Patricia Belton had come to visit her. The hostel was for homeless persons. She had first met her through Patricia Belton's boyfriend whom the complainer had met in a nightclub. The complainer had rented a room from him for a time around the end of 1999 or early in 2000. She had subsequently become his girlfriend and stayed with him for a period of about two years until the events which were the subject of the indictment had happened.

[15] The complainer said that Patricia Belton did not work, but "did heroin" and "did cocaine". The witness said that she had met her when she had come to the house of her former boyfriend with her mother in order to remove her belongings. Patricia Belton did not get on well with the witness, since she resented her.

[16] The complainer testified that, after the appellant's trial, she had met Patricia Belton once outside the house of the latter. At her invitation, she had gone into the house. A man lived there and, at the time in question, Patricia Belton had a baby. The witness herself had given birth to a child on 8 January 2003 and these events had taken place after that. The witness said that she had not spent more than half an hour in the house. However she said that, before that occasion she had been in Patricia Belton's flat, towards the very end of 2002. She had come to the hostel where the complainer was living to "get me". She wanted to talk to the complainer about the appellant. This was in November or December 2002. The complainer, JG, said that, at that time, Patricia Belton wanted her to retract the statements that she had made regarding the appellant's behaviour. Patricia Belton said that the appellant had talked to her and that that was what they wanted. Patricia Belton had said that the appellant had had feelings for the complainer. Patricia Belton had said to her "Just retract your statement; can you not do something to get him out of prison?" Patricia Belton, the complainer understood, had visited the appellant in prison. The complainer was unaware of whether, in saying these things, Patricia Belton had been acting on behalf of the appellant. When asked how the statement was to be retracted, Patricia Belton had suggested that the complainer should go to the police. She agreed that her memory was not good because of injuries which she had sustained to her face and skull. The complainer said that when Patricia Belton had said these things she was, in a way, surprised, but recognised that she was the appellant's friend. In the conversation that had occurred between Patricia Belton and the complainer, the subject of retraction of the complainer's statement had been brought up by Belton. The complainer thought that Patricia Belton was simply wanting to help the appellant, since she was his friend. The complainer said that she did not refuse this request straight away, although it had upset her, because she was trying to forget all about the original incident.

[17] At this point in her testimony, the Advocate depute put to the complainer that, in evidence before this court, Patricia Belton had said that the witness had said to her that she, the witness, had consented to sexual intercourse with the appellant at the time of the offences. In response to that, the complainer said that that was a lie and that she had not said any such thing. However, Patricia Belton's lying to this court did not surprise the witness. She insisted that Patricia Belton had urged her to try to help the appellant, to which the witness had replied: "He knows what he's done".

[18] In cross-examination the complainer reiterated her evidence concerning how she came to be acquainted with Patricia Belton. When the matter of the appellant and his position had been raised with the complainer during the conversation in Patricia Belton's flat, the complainer felt that she had been brought to the flat on false pretences; she had supposed that she had been invited there in a spirit of friendship, but it had become apparent that that was not so. The complainer had stayed in the flat for a little time because she had no money and did not know how she was to get back to her hostel. She had asked Belton to stop talking about the case, which the witness just wanted to forget. Discussion of it upset her. Patricia Belton had explained to the complainer that the appellant did have feelings for her, but the complainer did not wish to continue the conversation. There was no possibility of the complainer having said the things attributed to her by Patricia Belton.

Submissions of the appellant
[19] Counsel for the appellant submitted that the evidence of Patricia Belton was to be seen as fresh evidence. In that connection he relied upon McLay v HM Advocate 1994 S.C.C.R. 397, a decision of five judges, in which remarks made after trial were involved. They had been held to be additional evidence. Reference was made to the observations of the Lord Justice Clerk at page 408C-F. All members of the court agreed in relation to that. Here the issue of a reasonable explanation, in terms of section 106(3A) of the Criminal Procedure (Scotland) Act 1995, did not constitute an obstacle in the circumstances. The approach to be taken was that explained in Al Megrahi v HM Advocate 2002 S.C.C.R. 509 in paragraph [219] at page 584. Proposition (6) was relevant. The evidence had to be capable of being regarded as credible and reliable by a reasonable jury and likely to have had a material bearing.

[20] The evidence had now been heard. While Ms Belton's evidence related directly to the issue of rape and while the conviction for rape had been quashed on another ground, her evidence nevertheless bore upon the evidence of the complainer more widely. The conviction on charge (1) of the indictment still stood and depended fundamentally upon the credibility of the complainer's evidence. Counsel submitted that the evidence of Patricia Belton was capable of being regarded as both credible and reliable by a reasonable jury. It was plainly of material importance. In these circumstances the appellant's conviction on charge (1) in the indictment should be quashed.

The submissions of the Crown
[21] The Advocate depute moved the court to reject the ground of appeal under consideration. The Advocate depute accepted that the evidence of Patricia Belton was capable of being considered under section 106(3)(a) of the 1995 Act, which referred to "the existence and significance of evidence which was not heard at the original proceedings". That was so, even though the evidence concerned did not and could not have existed at the time of those proceedings. His acceptance of that state of affairs was based upon McLay v HM Advocate, which had been concerned with evidence of things which had occurred after the trial giving rise to the conviction. At that time the court was operating under the provisions of the Criminal Procedure (Scotland) Act 1975, as amended by the Criminal Justice (Scotland) Act 1980. Section 228(2) of the former Act provided that a person might appeal against conviction on the basis of "the existence and significance of additional evidence which was not heard a the trial and which was not available and could not reasonably have been made available at the trial". In the circumstances of this case plainly the requirement of section 106(3A) could be satisfied; plainly there was a reasonable explanation of why the relevant evidence was not heard in the original proceedings. On that basis, the court would require to follow the approach outlined in Al Megrahi v HM Advocate 509 in paragraph [219] of the Opinion of the Court. Plainly, if the additional evidence raised a serious question over the credibility of the complainer, there might be a miscarriage of justice, but this court would require, in terms of proposition (6) in paragraph [219], to be satisfied that the additional evidence was capable of being regarded as credible and reliable by a reasonable jury. In this connection the Advocate depute relied on Feely v HM Advocate (unreported) 17 March 2000; Appeal No. C657/97, particularly paragraphs 51, 58 and 62. He also relied on Marshall v MacDougall 1986 S.C.C.R. 376 at pages 380-382. In these circumstances, the question was whether the court had been persuaded that the additional evidence was capable of being regarded as credible and reliable by a reasonable jury.

[22] The Advocate depute, in that connection, submitted that Patricia Belton was plainly unworthy of credit. He identified a number of factors pointing to that conclusion. These were, first, her demeanour; second, the circumstances in which she alleged that she had heard the relevant remarks; third, the fact that she had extensive convictions for dishonesty and attempting to pervert the course of justice; fourth, the fact that she admitted having used false names to avoid arrest and prosecution; fifth, the fact that she was unable to give details relating to her meeting with the complainer; sixth, the fact that there was very considerable delay between her allegedly hearing the remarks in question and her bringing the matter to the attention of relevant persons; seventh, the fact that she did not know of the appellant's solicitors until she "bumped into" an aunt of the appellant; and, eighth, that her conduct was as just described despite her claiming to have been "shocked" at what she had heard from the complainer. On the other hand the complainer, in giving her evidence, had shown herself to be vulnerable, and simple, but essentially honest. It was notable that what Patricia Belton had attributed to her had not been put to her by counsel for the appellant. Against this background, the court should conclude that the complainer's evidence of denial of making the remarks attributed to her should be accepted and the court should conclude that no reasonable jury could regard Patricia Belton as a credible witness. In these circumstances this ground of appeal should be rejected.

The decision
[23] It was a matter of agreement before us that the evidence of Patricia Belton, although it related to events which were said to have occurred after the completion of the trial, was of such a kind that it fell within the scope of section 106(3)(a) of the 1995 Act. We do not consider that there can be any doubt about that. While McLay v HM Advocate was decided under earlier legislation, in particular, section 228(2) of the Criminal Procedure (Scotland) Act 1975 as amended, for the present purposes, we do not consider that there is any material distinction between that legislation and section 106(3)(a) of the 1995 Act.

[24] Likewise, it was common ground between the parties that the approach that had to be taken to evidence not heard at the original proceedings had been explained in Al Megrahi v HM Advocate in paragraph [219]. It is appropriate, at this stage, to note what was said in propositions (5) and (6) in that paragraph by the Lord Justice General (Cullen), as he then was:

"(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 founded 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 jury of a critical issue at the trial."

[25] It was accepted by the Crown in the present case that the credibility of the complainer could not be regarded as other than a critical issue at the trial. Furthermore, we do not think that it would be difficult to conclude that evidence of a post-trial statement by the complainer, which materially conflicted with the evidence given by her at the trial, was important and of such a kind that it was likely that a reasonable jury, properly directed, would have found it of material assistance in its consideration of that issue. It is of course plain that, while, having regard to the time of its origin, the additional evidence concerned could never in fact have been before the jury at the trial, for the present purpose of the application of the tests set forth in propositions (5) and (6) in paragraph [219] in Al Megrahi v HM Advocate, there must be considered by the court an hypothetical reasonable jury which would be faced with the need to consider, in the context of the evidence which was in fact led at the trial, the additional evidence which was not led at the original proceedings.

[26] In this connection, it is right to recall that, when the Crown in the present case sought leave of the court to call the complainer before us to respond to the evidence previously led from Patricia Belton, that course was objected to by counsel for the appellant, who maintained that, if allowed, it would give rise to some unspecified legal complexities. Counsel for the appellant did not later develop his point concerning such complexities. Indeed, he accepted that the court would be assisted by hearing the evidence concerned. In our view, there were none. We did not accede to that objection.

[27] In any case in which evidence not heard at the original proceedings is led before this court, under section 106(3)(a) of the 1995 Act, what the court must then do is to assess that evidence with a view to seeing whether that the criteria described in propositions (5) and (6), which we have narrated, are satisfied. In carrying out that exercise, as we have said, the court must consider what view the hypothetical reasonable jury, properly directed, would have formed regarding the additional evidence. Plainly it must be assumed that such a jury would also have before it the evidence which was actually led from witnesses at the original proceedings, otherwise the critical issue at the trial referred to in those propositions could never be identified. An issue then arises as to whether it is also to be assumed that such witnesses would have been appropriately examined before the hypothetical reasonable jury in relation to matters which would arise out of the evidence not heard at the original proceedings. In our opinion, in carrying out the assessment exercise required by propositions (5) and (6), it is to be assumed that, the hypothetical reasonable jury, who are to be taken to have available to them the evidence of the witnesses who did give evidence at the trial, would also have available the evidence of those witnesses concerning any issues that arose out of the evidence not heard by the original jury. If that were not so, the necessary assessment exercise would require to be conducted in a context in which no jury would ever be expected to reach a decision. Ex hypothesi, questions relating to such issues that arise out of the additional evidence not heard at the trial could not in fact have been put at the trial; accordingly, in our view, the only way in which the assessment exercise can properly be undertaken by the appeal court is for any relevant witness or witnesses to be recalled before this court and asked the appropriate questions. For that reason, we consider that it was entirely proper for the complainer in this case to be recalled to enable her to be asked questions which she would have been asked, had the evidence not heard at the original proceedings in fact been heard in those proceedings, were that to have been possible. Apart from anything else, the fresh evidence here was in effect that the complainer had committed perjury at the trial. It seemed clear to us that she must be entitled to be heard to refute any such allegation, if she could. Thus we think that it is proper for us, in assessing the additional evidence led here in terms of propositions (5) and (6), to take into account the evidence given before us by the complainer relating to that evidence.

[28] We turn now to the evaluation of the evidence of Patricia Belton, in terms of the criteria set forth in proposition (6), referred to above. Having done so, our conclusion is that her evidence, so far as material, cannot be regarded as either credible or reliable. We have a number of reasons for reaching that conclusion. In the first place, we were not impressed by her demeanour. We were not satisfied that she was using her best endeavours to give genuine evidence concerning the alleged vital conversation with the complainer. We did not find her explanations as to the circumstances in which she claimed that the conversation had taken place as convincing. Furthermore, while she claimed to have been "shocked" by the information that she said the complainer conveyed to her, she did not convince us that that was the position. Having allegedly had the conversation that she described with the complainer, her subsequent conduct did not suggest to us that she had in fact been shocked by anything that she had heard, nor did she behave in a manner in which she might have been expected to behave in the circumstances that she described. It was evident from what she said about the timing of the alleged conversation that there had been a very substantial delay between its alleged occurrence and her taking any action to bring the matter to the attention of the appellant's solicitors.

[29] Quite apart from these considerations, Patricia Belton made no attempt to portray herself as an honest person. She admitted that she had used a number of false names for the purposes of avoiding being arrested by the police and prosecuted. In addition, she accepted that she had numerous convictions for crimes of dishonesty, such as reset, theft and attempted fraud and three convictions for attempt to pervert the course of justice.

[30] In addition, it became evident during the course of Patricia Belton's evidence that she had a long-standing acquaintanceship with the appellant, the extent of which was not completely clear. However, in evidence, she admitted that she had travelled to the court on the morning on which she gave evidence before us in his company. In our view, this puts in question the genuineness of her evidence and the motivation for it.

[31] By contrast, the complainer presented herself as a person who was plainly vulnerable and had faced serious problems in her life, but who was endeavouring to give truthful evidence, according to her somewhat imperfect recollection. She stated clearly that she had made no statements such as those attributed to her by Patricia Belton and it must be pointed out that she was not cross-examined regarding that matter. In all these circumstances, we are quite unable to conclude that the additional evidence offered in connection with this ground of appeal would be capable of being regarded as either credible or reliable by a reasonable jury. Thus, the evidence fails the test set forth in proposition (6) in paragraph [219] in Al Megrahi v HM Advocate. For these reasons we reject this ground of appeal.