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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lady Paton

Lord Carloway

Lord Philip

[2010] HCJAC 44

Appeal No: XC326/07

OPINION OF THE COURT

delivered by LORD CARLOWAY

in the reference from the Scottish Criminal Cases Review Commission

GRAHAM GORDON

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: party

Respondent: Clancy QC, AD; the Crown Agent

6 May 2010

1. General

[1] The appellant was indicted on three charges. The first was that:

"(1) on [Sunday] 12 August 2001 at [address], Bridge of Don, Aberdeen, you did assault [SM]... seize her, pull her to the floor, restrain her there, remove her clothing, bite her on the breast, lie of top of her, force her legs apart and did rape her, all to her injury".

The second charge was one of indecent assault upon another woman in a car park off Union Street about a week later. The third was that:

(3) on [Friday] 4 October 2001 at Justice Mill Lane, Aberdeen, you did assault Constable [EG]... and did repeatedly place your hand on her knee and seize her buttock".

The case went to trial before the High Court in Aberdeen on 30 August 2002. During the course of the trial, the Advocate Depute withdrew the second charge. The appellant pled guilty to the third charge. On 5 September, the jury returned a majority verdict of guilty on the first charge. After obtaining reports, the trial judge sentenced the appellant to five years imprisonment on the rape charge and admonished him for the indecent assault. The appellant has long since served his sentence.

[2] The appellant applied for leave to appeal on three grounds, viz.: (1) defective representation; (2) oppression, the jury having been charged on the basis of the post incident restatement of the law of rape in Lord Advocate's Reference No 1 of 2000 2001 JC 143; and (3) prejudicial pre-trial publicity. Each ground was considered at first sift on 20 June 2003. Leave to appeal was refused; the first sift judge giving detailed reasons for his decision. However, at second sift on 23 December, leave to appeal was granted, but only on the defective representation ground. Notwithstanding that decision, on 30 April 2004 at a Procedural Hearing, the Court allowed the appellant to "lodge" two "additional" grounds of appeal. The new grounds related to the adequacy of corroboration and the directions given on mens rea. The new grounds were not made the subject of any sift (cf Act of Adjournal (Criminal Procedure Rules) 1996 rule 15.15(4)) and proceeded without leave. The permission to "lodge" "additional" grounds was interpreted as the grant of leave for these grounds to be argued.

[3] On 29 September 2004, the appeal proceeded. Only the "additional" grounds were argued. The defective representation ground was abandoned on the day of the hearing. Thus, the only grounds which were argued were those for which no leave had been granted. The appeal was refused by a Court presided over by the Lord Justice General (Cullen), Lord Penrose and Lord Hamilton (2004 SCCR 641).

[4] The appellant applied to the Scottish Criminal Cases Review Commission on a variety of grounds, including most of those which had already been rejected at first and second sift or by the Court at the appeal hearing. In March 2007, the SCCRC decided to refer the case as a potential miscarriage of justice primarily on the bases that: (1) the police investigation had been defective in a number of respects; (2) there had been a failure by the Crown to disclose a statement of the complainer; and (3) the SCCRC had uncovered what they regarded as "fresh" evidence.

[5] The elaborate and lengthy procedure which followed the reference is detailed in the Opinion of Lord Carloway dated 24 April 2009 (2009 SCCR 570). As at that date, the appellant was still insisting upon the grounds of appeal which had been lodged following the reference two years earlier and had reflected, in large part, the bases for that reference. The Court appointed a hearing on those grounds, notwithstanding certain vague suggestions that further grounds of appeal might be lodged. No such grounds were lodged and the appeal was heard over three days from 26 January 2010. At that hearing, the appellant appeared on his own behalf, having parted company (not for the first time) from his legal representatives.

2. The Evidence

[6] It is worth noticing three matters in limine. First, the evidence led at the trial was both sufficient in law and compelling in fact, notwithstanding the existence of several legitimate criticisms which could have been made, and in most instances were made, of the Crown case. Secondly, it cannot be disputed that the Grampian Police investigation of the case was defective. In due course, after the conclusion of the trial, that investigation was the subject of adverse comment following an independent review by the Northern Constabulary. Thirdly, the appellant did not give evidence at the trial. The decision that he should not give evidence is not the subject of any criticism. However, it may be a factor to be borne in mind at the appellate stage in determining whether a miscarriage of justice has occurred on the basis of particular grounds of appeal.

(1) THE COMPLAINER

[7] The complainer's evidence was adduced by the Advocate Depute in remarkably short compass. She was 43 years old at the material time, separated, with two children aged 17 and 12. She said that she had been "in a relationship" at the time of the incident (although not living with the person concerned) and was still in that relationship at the time of the trial. She was taking an anti-depressant, prescribed by her doctor, which, she accepted, ought not to have been combined with alcohol. In cross-examination, the appellant's counsel was able to put to the complainer that the particular drug was Lustral.

[8] The complainer had started the night at about 7 pm at her female friend DS's house, where she had one drink of Morgan's (Spiced Rum) and Coke, before heading to the centre of Aberdeen at about 9 pm and meeting other female friends. They had one drink in each of three pubs visited before going on to Franklyn's, a nightclub situated in Justice Mill Lane, at about 11 pm. The Lane is just off the west end of Union Street in central Aberdeen and would be a busy place during the club's operating hours.

[9] The complainer accepted that, over the course of the evening, she drank about eight measures of Morgan's, albeit interspersed with glasses of water. After 10 or 20 minutes in Franklyn's, the complainer was approached by the appellant and asked for a dance. She did dance with the appellant, who then bought her a drink. According to the complainer, she was only in the appellant's company for 10 or 15 minutes before he asked her "to go up the road... to go home... he wanted to take me home". Whose home the appellant was planning to take the complainer to remains slightly ambiguous in the evidence, but the complainer appeared to be referring to her own home, which was in Mastrick, on the western fringes of the city. This passage of evidence ends with the Advocate Depute asking the complainer what then happened and she replied: "Well that's just where I can't really remember".

[10] The complainer recalled leaving the Club, thinking that she was going home by taxi. But she got into the appellant's car. He drove her to a location which she did not recognise; at least not immediately. She opened the car door and fell out. On falling, the complainer recalled the appellant saying "That's the way I like my women". He helped the complainer to her feet and assisted her up the common stair to his flat. The complainer went into the livingroom. The appellant gave her a tissue for her injured knee. It was the complainer's position that they then sat on a settee.

[11] The complainer tried to telephone for a taxi using her mobile phone, but the appellant would not, or at least did not, tell her his name or address. Initially, the complainer said that she had asked the taxi firm to come and collect her anyway, even though she could give no address. However, the appellant's counsel was able to put to her that she had telephoned "Mair's Taxis" and she accepted that this was so. She had told Mair's that she was at the Bridge of Don barracks. Thus, as she also accepted, she knew roughly where she was, namely in a new housing development near what used to be the Gordon Barracks at Bridge of Don, on the north eastern edge of the city.

[12] According to the complainer, it was after her attempt to obtain a taxi that she was attacked by the appellant, who seized her by the legs, pulled her down onto the floor, pulled up her top and bit her on the breast. The appellant broke the decorative chain (label no 1) of her trousers, undid the trousers and pulled them and her pants down. He forced her legs apart, lay on top of her and raped her. The complainer described the appellant as being "very forceful". She had tried unsuccessfully to push him off. She denied suggestions from the appellant's counsel that all the activity had happened on the settee, with the appellant kneeling on the ground. There had been no foreplay in the form of kissing. The complainer refuted the suggestion that "oral sex" had occurred; although it is not clear from the question asked whether this was a reference to oral sex performed on the complainer or by the complainer.

[13] The complainer maintained that she had told the appellant to "get off", to "stop" and to "leave her alone". But she said to the appellant's counsel that she could not shout out as she "didn't feel as though [she] had a voice to shout it out". Counsel put it to her that, if she had really been attacked in the manner described, she would have been "screaming the house down". The appellant accepted that, but repeated that she did not have the voice to do so.

[14] The episode ended when the complainer told the appellant, whilst intercourse was still going on, that she had to go home as her husband was waiting for her. When she said this, the appellant had been shocked, saying that he did not want anything to do with a married woman. He "just got up and left"; meaning that he left the livingroom. The complainer denied the suggestion that she had been upset because the appellant had left her in this fashion; effectively shunning her. The line in cross-examination was thus, not that she had not been upset, but that she had been upset for this particular reason. The appellant's counsel's final question and the complainer's response were:

"Q. ...the only explanation that can be put forward is that the effect of the drink and the medication, and his perhaps ungentlemanly rejection of you at the end of the evening upset you to such as extent that you considered that what had happened had happened against your will ? - A. No it did happen against my will".

[15] The complainer put her clothes back on and ran out of the flat. When she got outside, she phoned a male friend, CL, who lived a short distance from her own house in Mastrick. She described CL as "just a friend", whom she visited occasionally. She managed to hail a taxi. She had arrived at CL's flat intending to tell him what had happened, but she did not do so. The appellant's counsel was able to put to her, and she accepted, that she had told CL twice that she had been near Bridge of Don barracks and had been punched on the nose by a "bloke". The complainer accepted that this had been a lie.

[16] The complainer said that she had left CL's flat after only about 10 minutes and had telephoned DS, asking her to pick her up at the Mastrick shopping centre. Despite DS having been drinking, she did this. Initially, the complainer testified that she had told DS on the telephone that she had been raped, or at least attacked, and that, when she arrived at DS's flat, she had told her that she had been attacked by the appellant, although she did not know his name. But she accepted in cross-examination that she had not made these complaints at that time. She explained that she had not done so as she had been "so upset" and "very agitated". But she had eventually told DS what had happened. DS said that she ought to call the police. That is what was done and the police arrived at DS's flat. The appellant's counsel put it to the complainer, and she again accepted, that she had told the police, in front of DS, that she had been raped in a lane near Franklyn's. The complainer accepted counsel's suggestion that she had thus "brazenly told the police a lie", but she explained that this had been because she had been "totally disorientated".

[17] The police took the complainer to Bucksburn police station. Again, counsel was able to put to the complainer, and she once more accepted, that she had given a statement to the police in which she had said yet again that she had been raped in a lane next to the nightclub. She repeated the lie because, she said, she was "so confused at the time". She refuted the suggestion of counsel that this account had been intended to avoid admitting that she had willingly gone to the appellant's flat. She then did, apparently in the same statement, tell the police where the incident had occurred and subsequently took the police to the vicinity of the appellant's flat.

[18] The complainer was medically examined and pointed out the bruising on her breast, where she had been bitten, and bruising on the top of her thighs, which she said had been caused by the appellant forcing her legs apart. All her clothing was taken by the police. In cross-examination, counsel made some play of the absence of that clothing in court and asked the complainer if she knew where the clothing then was. He obtained a concession from her that, other than the broken chain, her clothing had been undamaged.

(2) CORROBORATION

A. Distress (and conflicting accounts)

[19] On 2 September 2002 CL testified that he had known the complainer for about eighteen months. On the night of the incident, he had returned home from the pub some time after midnight. He had been telephoned by the complainer "to see if she could come up and speak with" him. He agreed to that. She had telephoned later saying that she was trying to get a taxi. There was a third call when she was in a taxi. When the complainer arrived, he could "tell she was very annoyed", "angry" and "upset". But she had not told him what was upsetting her and he had not asked. She did, however, say on several occasions that a "bloke" from Bridge of Don had punched her on the nose. After about half an hour, much of it spent in silence, the complainer had jumped up and said that she was going away, which she did.

[20] DS confirmed the complainer's account of the early part of the evening, including the amount of alcohol consumed. She observed the complainer talking to the appellant, whom she knew, at the bar. DS maintained that she had shouted over to the complainer words to the effect of: "I hope you're not going away with that p***k". The complainer said that she was not going to do so. The next time DS looked around, "she was gone". This was unusual. Sometime around 3.30 am, DS received a call from the complainer asking her to collect her from the Mastrick shopping centre because she had been assaulted. DS did collect her. On the drive to DS's house, the complainer had again said that she had been assaulted. DS commented that "she was really quiet, she was weird". At the house, the complainer had said that the appellant had assaulted her at Bridge of Don barracks. DS described the complainer as "almost in shock". DS had told her that she should call the police. DS did this herself about five minutes after their arrival at the house. When the police arrived, as the appellant's counsel put to DS, the allegation was of being attacked "in a lane next to the nightclub" despite the earlier reference to it being at Bridge of Don.

[21] PC Gillian Pettigrew was one of the police who attended at DS's house. She estimated that the call to the police had been at about 3.45, with the police arriving about half an hour later. She recalled the complainer being "very subdued... very quiet. She had been drinking but nothing excessive". The initial complaint made by the complainer was that she had been raped by the appellant beside a wall in a lane near Franklyn's. But there had been nothing said about the complainer being forced to leave Franklyn's.

[22] DC Fiona Chapman was on duty at Bucksburn police station when the complainer arrived. Having received information about a rape taking place in the vicinity of Franklyn's, she interviewed the complainer. The initial account given was that:

"she had met a male in Franklyn's nightclub, had briefly spoken to him there and after a short time he had forcibly removed her from the premises down the back stairs and had raped her within a lane up the side of that nightclub".

The appellant's counsel was able to elaborate on this by suggesting that this account had involved the complainer alleging that she had been pulled from the nightclub by the hair. This was confirmed to be the position. However, after a short time, the complainer had changed her story. She had said that she had left the nightclub willingly and the attack had occurred at Bridge of Don barracks. The complainer had explained the earlier account by saying that she had been scared and embarrassed to admit that she had gone home with a man whom she had only just met.

B. The Chain/belt

[23] DC Chapman spoke to taking possession of the trouser chain (label 1); said to have been damaged in the attack. She was not actually asked to confirm the existence of damage, but this would presumably have been obvious to the jury.

C. Medical

[24] An experienced police surgeon, who was also a local general medical practitioner, spoke to examining the complainer at about 6 am. He found:

"a petechial mark, that's a bruise, on the victim's left breast. It was 1 cm x 1cm in size and just above the nipple area.

...on the left upper arm there were two 'C' shaped abrasions, these are scratch marks and they were about 1 cm in size. They were 5 cm apart...on...the inner aspect of the arm...less than 24 hours old.

...three petechial, three bruises about half a centimetre in size ...on the right mid thigh on its upper aspect... faint and small... less than 24 hours.

...on the buttock on the right hand side, round at the back of the thigh, there was a 1 cm 'C' shaped abrasion... less than 24 hours old".

The Advocate Depute extracted from the doctor that the complainer had said that she was "sexually active". Otherwise, the doctor said that the bruising to the thighs had possibly been caused by the complainer's legs being forced apart. But it was not "classic fingertip bruising" showing the use of force.

[25] No attempt was made by the Advocate Depute to obtain the doctor's opinion on what might have caused the various injuries. At the stage of a "no case to answer" submission, the Advocate Depute made the somewhat startling concession that he did not plan to rely on any of the medical evidence as corroboration of the lack of consent (i.e. the use of force).

D. The Appellant's Interview

[26] The appellant was aged 41 at the material time. As already noted above, he did not give evidence. However, his tape recorded interview by the police at Bucksburn on Monday 13 August 2001 was played to the jury. It is not unreasonable to surmise from the terms of the interview that not all of the members of the jury would have been impressed either by the appellant's version of events or with his attitude towards women in general and the complainer in particular.

[27] The appellant said that he had been out with his friend BB and BB's friend G. They had ended up at Franklyn's. He continued (as it appears from the transcript):

"Well I met a lot of new females yeah and I was socialising and... I suppose where we are coming to is that fact that... I met this female, don't even know her name, right, ...I asked her over to the bar for a drink".

The appellant was unable to remember the complainer's name, although he recalled that she was from Mastrick. He bought her a large Bacardi and coke, although, when asked if she had been drunk, he replied: "Certainly was". He knew DS, not by name but as a person who did not like him. She had been displeased that he was with the complainer. He told the complainer that he was going away shortly and asked her if she wanted to come home with him or to return to her friend. His interview continued:

"...you know it was the fact that she was going home. Oot the door wi me anyway, that's for sure.

... so the bottom line was she decided that... she would accompany me ...home".

The appellant painted a picture of arriving at his flat, putting music on, pouring the complainer a drink and giving her a tour of the flat, which was relatively new. He then said:

"...my recollection of events is that you know just started snogging you know and... then it led to us having... sex.

...in my... livingroom. On my settee. That also included oral sex prior to full blown sex. Aye from me to her that is.

...oral and full blown sex wi consent. No struggle.

And at no time did she tell me to stop. From my recollection of the incident she was even enjoying herself".

In a long passage, he said that, after the sex:

" ...she phoned a taxi on cellphone right but then I think, I suppose that's when things got a wee bit oot o' control because what happened was she then told me that she was married. She was married right and I says to her well phew why are you sitting here you know and I, I, I dinna get involved wi' married women. I wouldnae like that done to myself right... I says to her well nae interested ken you are married... so I just said nuh so she phoned a taxi and said well fine well just shut the door on the wie oot. I am going away to my bed and that was it...".

The appellant made great play of his discovery that the complainer was a married woman; maintaining that this had come as a surprise to him.

[28] The appellant said that the complainer had telephoned for a taxi before she left the flat. She had done this when he was performing oral sex on the complainer. He specifically remembered her underpants being off when she was calling for a taxi. He appeared to accept that he had not been able to provide the complainer with his address; maintaining that all he could tell her was that the flat was at the Gordon Barracks. He then contradicted himself by saying that the complainer's pants were back on when he was having intercourse with her later. He accepted that he must have removed her trousers, maintaining that this was "without objection". The intercourse had then occurred with the complainer leaning or sitting on the end of the settee and the appellant on the floor.

[29] When asked why the complainer was maintaining that he had raped her, he volunteered the following:

"Well obviously she might not have been too happy about the fact that I went to my bed and told her to shut the door on the way out. Secondly, I don't know if she is married but she said she was married. She is maybe trying to save face. And finally, revenge".

It would appear that also played to the jury, without objection, was the next passage in which the appellant gave some insight into his thinking. He maintained that not remembering the name of a female with whom he had had sex was "nothing, nae big deal for me that guys". He had been married twice before. He was now single and, he volunteered:

"to be honest wi you guys, I have shagged about 13 birds in about 15 days. Nae need to get in tow wi a married bit of stuff, right. I dinna hae to force myself on females either. I've got enough numbers in here right. If you go up that toon you can get it anywhere, right, so I dinna hae to force myself on any woman".

[30] In response to further questions, the appellant appeared to be saying that, when the complainer was 'phoning the taxi firm, he was performing oral sex on her for a second time; after they had had intercourse. He also said that he was not sure whether, by that time, he had become aware that she was married. He accepted that he was again contradicting himself. He then said that he could not say whether the complainer had her trousers on or off during intercourse. The reason for his uncertainty was expressed in the following passage:

"Right guys. You meet a female on Friday night right okay. Been with me, me the whole night. Saturday night I was wi her. Last night I was wi another female right and I was back bonking her on the settee in the livingroom right. Now I can't remember everything went on with her last night let alone you are saying right this is me, to me then I was out after later on last night and fixed up wi another female that I could taken home which I didn't go home with right.

What, what, what I am saying to you is that you know I can't remember everything. Friday, Saturday and Sunday, that's three different females that were very similar type situations that were back I mean, you know full blown sex with them. Right, with their consent and three you know piece, piece, piecing them all, piecing them all together...".

[31] The conversation returned to whether the appellant had given the complainer his address when she was trying to obtain a taxi. He was asked: "So did you tell her your name and address?" He replied: "I don't know if I did". He continued: "Well what I am saying to you is right subconsciously right I wouldnae want her to hae my address anyway...", although he explained that she would have known where she was as his name-plate was on his door. He then expressed concern that the complainer's husband might have found out his address.

[32] The appellant mentioned that he had one neighbour, a school teacher who, he thought, would probably have been in while the incident was going on. When asked if the neighbour would have heard anything, the appellant said: "Well it depends how loud the, the stereo was on, you know...". The police then asked a relatively open unconnected question: "What about her breasts, did you do anything to her breasts?" The appellant replied:

"Eh yeah, played with her breasts. Nibbled at her breasts yeah. I was haeing a nibble between her legs as well, yeah. Probably bruised between her legs wi me nibbling quite close to her vagina. Nae reaction, nothing unusual for me that".

It was specifically put to the appellant that the complainer was saying that she was continually shouting at him and telling him to stop. He responded that this was untrue.

[33] When asked if he had told his friend BB about his exploits, he said:

"[B] was going on about what he was up to right. But what I am saying to you is that you know I might have said, took back this thing and shagged her you know dinna even ken her name type thing..."

He repeated his reference to taking a "thing" home and "shagging" her. Returning to the issue of drink, he said: "I was perfectly sober. She was totally pissed", although he later conceded to drinking four bottles of beer and two or three nips. He then also said that the complainer knew what she was doing, so she "wisnae that pissed".

3. The First Appeal and the Reference

[34] The appellant instructed different agents from those who represented him at the trial to lodge an appeal. As already observed, the only ground of appeal which was granted leave was one of defective representation. It is instructive to examine this ground, since it was, as also noted above, abandoned by the appellant at the first appeal hearing. The ground was a detailed one, which complained that the appellant's counsel had failed to lead evidence to rebut the prosecution case. The first aspect of the complaint (a) was the failure of the appellant's legal representatives to make an application, under section 275 of the Criminal Procedure (Scotland) Act 1995, to permit questioning and to lead evidence that: (i) the complainer and the appellant had been kissing one another in the "public bar" of Franklyn's; and (ii) the complainer had engaged in oral sex "with" the appellant. The second (b) was the failure to adduce evidence of the kissing in the bar spoken to by the appellant's friend, BB. BB was also, it was said, able to speak to the complainer being "very drunk". The third (c) was the failure to lead the evidence of SC, the appellant's neighbour, who, in a precognition of unspecified date, maintained that, had there been any shouting or screaming from the appellant's flat, he would have heard it. The fourth (d) was the failure to lead evidence from a Professor Hindmarsh (witness no 23), who spoke to investigating whether the complainer had been given a "date-rape" drug. His report had concluded:

"I can find no evidence in any of the statements provided to me of the involvement of any drugs, other than alcohol, in the alleged rape of SM. And that at about the time of the alleged assault, SM would have been mildly/moderately intoxicated by alcohol".

[35] The SCCRC reference recorded that they spent "considerably longer" than was usual in looking at the appellant's application, partly because of the "numerous and voluminous submissions" made on the applicant's behalf (para 25). These started with prejudicial pre-trial publicity, a ground which had been refused as unarguable at both first and second sift (i.e. by four judges). After a detailed re-consideration, the SCCRC concluded that the media coverage had not "denied the applicant a fair trial" or resulted in a miscarriage of justice (para 35). The second matter considered was the effect of the change in the law of rape between the incident and the trial. This ground had also been rejected at first and second sift as unarguable but was re-examined by the SCCRC before being rejected as a possible cause of a miscarriage of justice. Thirdly, sufficiency was considered. This had been one of the "additional" grounds of appeal, which had been rejected at the first appeal hearing. Although the SCCRC appear to have confined themselves to a consideration of whether the post incident distress provided corroboration of the lack of consent, it was not thought that there had been a miscarriage here either. The fourth area related to misdirection on the law of rape. This had also been considered and rejected at the first appeal hearing. Again it was not considered that this ground ought to form the basis for a referral.

[36] The first new matter raised in the application was a complaint about lack of disclosure; notably a failure by the Crown to disclose that the complainer's clothing had been seized by the police. But, as the SCCRC noted, the appellant's trial counsel had been well aware that the clothing had been retained by the police. The SCCRC actually obtained the complainer's clothing and had it forensically examined by Dr Linacre of Strathclyde University. The purpose of this was, in part, to see if there were any carpet fibres on the clothing. Dr Linacre reported that no fibres were found, but that the fabric of the clothing was poor at retaining fibres. He mentioned that there was no damage to the clothing submitted, although this fact had already been established by counsel in cross-examination. Thus no reference was made on this ground.

[37] The SCCRC then considered issues of "Police conduct and disclosure of evidence" (reference paras 77 et seq). A variety of potential irregularities were identified, as they had been in the Northern Constabulary's review, a copy of which had been given to the appellant. Not all of these impressed the SCCRC, being procedural rather than substantive in nature; but some of them evidently did. The failures started first with the police not having instructed a medical examination of the appellant. This, it was argued, might have confirmed his account of performing oral sex on the complainer. The SCCRC had asked Dr Linacre to test the complainer's underwear for the presence of saliva, with a negative result; possibly because of the absence of saliva in the first place or simply by the passage of time. Secondly, there was a failure to seize the appellant's clothing and the tissue, which he had said she had used on her knee. Thirdly there was a failure to make "house to house" enquiries, such as with the neighbour SC, which would have confirmed the absence of shouting etc. It would appear that SC was the only neighbour who might have heard such shouting. Fourthly, there was a failure to take statements from witnesses at Franklyn's, such as BB or the staff. Fifthly, there was a failure to seize CCTV footage showing activity outside Franklyn's. One police officer, DC Crighton, had looked at this footage and had noted that it contradicted the complainer's earlier account of being forced from the club. He had reported this to DC Chapman but, in light of the complainer's change of account, the tapes were not seized. The SCCRC considered that, in relation to this type of failure, Johnston v HM Advocate 2006 SCCR 236 might have relevance (para 110).

[38] Next, along similar lines, there was, sixthly, a failure to seize CCTV footage in the vicinity of the appellant's flat, which may have shown the complainer's fall. The police did not view this material at all. Seventhly, there was a failure to examine the complainer's mobile telephone records, something which the appellant had mentioned in his interview. Eighthly, there was a failure to trace the taxi driver who had picked up the complainer from Bridge of Don.

[39] The ninth failure was to interview CL timeously and to establish his relationship with the complainer. On this topic, the SCCRC thought that they might have uncovered "fresh evidence". The SCCRC interviewed CL in 2006. He said that he had been in a relationship with the complainer, commencing nine months prior to the incident; the sexual element in which had ended two months after that commencement. CL maintained that the complainer had wanted the relationship to continue. When asked by the SCCRC why the complainer had seemed annoyed, the SCCRC reported that he had:

"indicated that he wasn't sure why this was at the time, but that she had been annoyed in the past, as he had been in a relationship with her but had broken it off. He thought that this might have been the reason why she was annoyed on this occasion".

[40] The tenth failure was neglecting to obtain details of an attempted suicide by the complainer, which had occurred after the incident involving the appellant. Eleventh, there was a failure to obtain information on the complainer's background and character including her use of prescribed drugs and alcohol.

[41] Twelfth, there was a failure to provide details of a charge under section 12 of the Children and Young Persons (Scotland) Act 1937 proffered against the complainer in relation to her daughter, then aged 11. Her estranged husband had reported an incident whereby, in January 2002, the complainer had allegedly left the child on her own for a period. The matter was not pursued by the police and was not reported to the procurator fiscal; something which the Northern Constabulary regarded as irregular. The SCCRC thought that the information about alleged child neglect was arguably of some use in the preparation of the appellant's defence and that the failure to disclose it fell foul of the Crown's obligation in that regard as described in Holland v HM Advocate 2005 SC (PC) 3 and Sinclair v HM Advocate 2005 SC (PC) 28 (SCCRC reference paras 193-194). The SCCRC appear to have been under the impression that, at the time of the trial, section 274 of the 1995 Act only expressly excluded evidence of bad character in relation to sexual matters (para 194).

[42] Overall, the SCCRC concluded (para 201) that:

"...police investigation can never be an exact science, and that the use of hindsight following any criminal investigation will inevitably bring any errors of judgement into sharp focus. The fact that mistakes were made in a criminal investigation does not necessarily mean that an individual who is convicted following that investigation may have suffered a miscarriage of justice. Moreover, it does not accept the suggestion, implicit in a number of the complaints made by the applicant, that mistakes were deliberately made and that officers of Grampian Police were somehow complicit in a scheme to ensure that he was convicted and charged. Nevertheless, the Commission considers that the particular errors identified by the Northern Constabulary report in the applicant's case, when taken together, might support the argument that evidence which could have had an important bearing on the guilt or innocence of the applicant was lost as a result of systemic failures in the approach which was adopted to the initial allegations made by [the complainer]" (emphasis added).

Having considered McQuade v Vannet 2000 SCCR 18, which they regarded as involving the police destroying a video tape from a CCTV camera covering the locus of an offence, they continued (para 204):

"In the present case, there are a number of possible adminicles of evidence, including a video tape, which appear to have been lost due to the actions of the police. The documentation which the Commission has considered suggests that there is no satisfactory explanation as to why this evidence was not secured. The Commission considers that this raises concerns about the possibility of the applicant not having received a fair trial, and that there may have been a miscarriage of justice on that basis".

The Commission considered that the appellant's counsel would not have been aware of the extent of the weaknesses in the police investigation, such as the failure to seize the Franklyn's CCTV footage and the failure to interview CL (para 206).

[43] The SCCRC finally returned (para 210 et seq) to the point where they had started, namely disclosure. This was in relation to the Crown's practice at the time of the trial not to hand over, as a matter of course, copies of witness statements. Thus, the Crown had not, so far as could be recollected, handed over copies of the statements of the complainer as recorded by the police. But, also in accordance with practice at the time, the Crown had given to the appellant's agents "lines of evidence" in relation to witnesses, which were essentially in identical terms to their police statements with certain personal details omitted. These lines of evidence were said, in a covering letter from the Crown, to have been given to the defence:

"on the understanding that they do not comprise the original statements of these witnesses and cannot be used against them in court".

[44] A specific complaint was that, in one of the complainer's statements taken on the morning of the incident, the complainer had maintained that she had "continued to shout" during the incident. This contradicted her evidence that she had not shouted. The SCCRC concluded that, standing the terms of the covering letter and notwithstanding dicta in Orr v HM Advocate 2003 SCCR 91, this matter could not have been put to the complainer with a view to undermining her credibility. However, the SCCRC noted that the complainer's report of shouting had been put to the appellant during his interview (supra). The "discrepancy" was used by the appellant's counsel in his address to the jury. Although counsel had not put to the complainer that she had earlier said that she had been shouting, he remarked to the jury that there was a discrepancy between her evidence and what she had been telling the police. In his charge to the jury, the trial judge had commented that there was no competent evidence of what the complainer had told the police in this regard and that evidence of what the police had said in the interview was not admissible to prove that the complainer had said that she had shouted upon the appellant to stop.

[45] The SCCRC concluded (para 223):

"In failing formally to disclose the statement, the opportunity for counsel to consider the possibility of putting to [the complainer] the discrepancies in her evidence as compared to the terms of her police statement was lost. The Commission cannot say that the fact that counsel was unable to cross-examine witnesses in relation to these matters might not possibly have affected the jury's verdict in the applicant's case. The Commission considers that this may have resulted in a miscarriage of justice" (emphasis added).

4. The Grounds of Appeal

[46] The Note of Appeal before the Court is that lodged on 25 June 2007. No motion was made to amend the grounds contained in that Note. They are set out in five numbered paragraphs. They read as follows:

"1. There was a failure by the Crown to make full disclosure of material information to the Defence prior to trial viz:

(i) A statement made by the complainer ...to the police.

In material respects, the statement to the police contradicted the evidence given by the complainer. The failure of itself was productive of a miscarriage of justice. The Crown having failed in its obligation to make full and unconditional disclosure of the information in its possession denied the appellant's legal representative the opportunity to consider and undertake cross-examination of the complainer or lead other evidence relevant to the discrepancies between the police statement and her evidence at trial ...

2. The failure by the Crown to disclose the prior police statement... resulted in a miscarriage of justice ...

3. There is fresh evidence and the verdict of the jury taken in absence of that information amounts to a miscarriage of justice. ...

(i) The evidence is the information provided to the SCCRC in the course of its enquiries by the witness [CL].

(ii) The witness has disclosed that he and the complainer were involved in a sexual relationship and when he refused to continue the relationship the complainer reacted in a manner similar to that demonstrated on the night of the alleged offence. ...

...

(v) The fresh evidence relates not so much to the sexual history of the complainer as to her character, demeanour and reaction to rejection. When set against the evidence in the case, it provides a relevant alternative explanation for her response to rejection by the appellant and her subsequent seemingly distressed state when in the company of the witness [CL].

4. There was a deliberate withholding from the Crown ... relevant information concerning the complainer ...

(i) There was a withholding of information to the Crown of an outstanding criminal charge against the complainer ... under Section 12 of the Children and Young Persons (Scotland) Act 1937....

(ii) As a result the Crown was not in a position to assess whether the information fell into the category of information that ought to be disclosed to the defence and the Defence was denied an opportunity to assess what use to make of the information and any other available information that could have arisen from it."

5. There was systemic failure by the police to properly investigate and preserve evidence that was likely to have had an important impact on the requirement to accord to the appellant a fair trial.

(i) CCTV evidence from a night-club at which the appellant met the complainer, although examined by the police, was not seized. ...

(ii) CCTV evidence in the vicinity of the locus of the alleged rape was not seized. ...

(iii) The location of witnesses and preservation of the evidence of such witnesses with particular regard to staff or patrons of the night-club ... and the taxi driver who uplifted the complainer from the vicinity of the appellant's home, being the first person to witness her demeanour and physical state following the alleged rape.

(iv) The phone records of the complainer with particular regard to calls for a taxi and to other witnesses.

(v) Forensic evidence that could have been obtained by timeous medical or forensic examination of the appellant that could have supported his defence that sexual activity with the complainer was with her consent.

(vi) As a consequence of the foregoing the police undermined the Crown's ability to prosecute the case against the appellant in the public interest and to consider and obtemper its duty to make disclosure of all relevant evidence. More particularly, the failings prevented the fulfilment of the duty to disclose to the Defence a body of evidence that may have been important to the appellant's defence and thereby resulted in the appellant being denied a fair trial.

The foregoing grounds of appeal, individually and in the cumulative nature and consequences of the matters identified amount to a miscarriage of justice".

In simple terms, the grounds of appeal are: failure to disclose the complainer's police statement (grounds 1 and 2); fresh evidence from CL; (ground 3); deliberate withholding of information on the charge of chid neglect (ground 4); and police failures to preserve evidence, to trace witnesses and to carry out medical and forensic examinations (ground 5).

5. Submissions

(a) APPELLANT

[47] The appellant presented the appeal himself. The Court did not therefore have the benefit of a structured presentation, with measured legal argument, which the presence of counsel might have supplied. The appellant was fortunate in that the Advocate Depute, when opposing the appeal, took considerable care and time to analyse the appellant's grounds fully and to explain in balanced terms both their strengths and weaknesses.

[48] The Court notes the written document presented by the appellant in the course of the hearing, containing inter alia information relating to the unavailability of counsel and the difficulties of instructing alternative representation. But this Court has given the appellant more than sufficient time, on two occasions, to prepare and present his appeal against the verdict of the jury. Specifically, the Court on 24 April 2009 had expressed its concerns about the time the appeal was taking and had made it clear that it expected the appeal to be properly presented at the diet ultimately fixed, of which the appellant had been given many months notice.

[49] The appellant began his submissions by referring to a document entitled "Reformalised Grounds of Appeal", which had been tendered to the Court on the day before the hearing. Although phrased as an attempt to re-formulate existing grounds of appeal, it is apparent that this document contains material not contained in these grounds. The Court advised the appellant that, as he was a party appellant, he would be permitted to refer to the document as an aide memoire and would further be permitted to present all the arguments which he wished to present; but that the Court reserved its position on the question of whether or not it would consider any argument which went beyond the parameters of the original Grounds of Appeal. Ultimately, having heard all the arguments and considered all the circumstances, including the very short notice given to the Crown of the Reformalised Grounds of Appeal, the Court concludes that this appeal hearing must be restricted to the arguments set out in the Note of Appeal.

[50] It rapidly became apparent that the appellant's focus had moved away from the grounds in the Note of Appeal, and the matters which had formed the bases for the SCCRC reference. The appellant now wished the Court to hear evidence from a Professor AD Barclay, who had travelled from Wester Ross for the start of the appeal hearing. The Court had been, until the appeal hearing, unaware of any involvement of the professor in the case. A document called a "Witness Statement" was presented to the Court. In this statement, the professor remarks that, contrary to his understanding of the appellant's knowledge at the time of the trial about what had occurred in relation to the complainer's clothing, the trousers had been "subject to at least visual and presumptive chemical testing" by forensic scientists. He comments about the likely presence of fibres and other materials on the complainer's clothing, depending on whose version of events was being scrutinised. He considered it likely that tapings from the clothing had been carried out. Having recently obtained the forensic science laboratory notes, which referred to the finding of semen on the trousers and to the creation of tapings, he considered that, contrary to the terms of instructions given to the laboratory by the local procurator fiscal to cease examination of the items, further work ought to have been carried out. Ultimately, he queried whether the trousers produced were the ones worn by the complainer at the time, given the absence of damage or blood in the area of the knee. In essence, the professor was recommending a new scientific examination of the clothing.

[51] None of this was foreshadowed in the Note of Appeal or, indeed, the SCCRC reference, which was based in part on Dr Linacre's examination of the clothing. Nevertheless, the appellant appeared to be submitting that the appeal hearing might be continued to await the results of Professor Barclay's examination of both the clothing and the related contemporaneous laboratory records. It was accepted that Professor Barclay had not examined the clothing and had produced no report. Under reference to Stewart v HM Advocate 1993 SCCR 1010, a case concerning the extension of a time bar, the appellant contended that the Crown had been in possession of the clothing for years. He appeared, at least at certain points in his submissions, to be suggesting that the Crown had deliberately suppressed material or had failed to disclose the results of a forensic science examination.

[52] At the core of the appellant's submissions, on the first and second grounds and generally, was the proposition that anything potentially exculpatory was disclosable by the Crown; what the appellant referred to as his obtaining a "square deal". He mentioned, en passant, the well known cases of Holland v HM Advocate (supra), Sinclair v HM Advocate (supra); McDonald v HM Advocate 2008 SCCR 954 and McLeod v HM Advocate (No 2) 1998 JC 67. He then cited a number of cases from England concerned, at least for the most part, with the English procedure of "staying" proceedings in the event of an "abuse of process". It was difficult to grasp just what the Court was to take out of these cases, since no particular dicta were founded upon, but they included R v Horseferry Road Magistrates' Court ex parte Bennett [1994] 1 AC 42; R v JAK [1992] Crim LR 30; Altaf v CPS, West Midlands [2007] EWCA (Crim) 691; Hui Chi-Ming v R [1992] 1 AC 34; DPP v Meakin [2006] EWHC (Admin) 1067; and R v Bow Street Metropolitan Stipendiary Magistrate ex parte DPP [1992] 95 Cr App R 9. Reference was also made to the European Court of Human Rights decision in Sofri v Italy [2004] Crim LR 846. More cases are cited in the appellant's written document, but these were not specifically referred to in argument and, once more, it is difficult to grasp what the appellant wished the court to extract from them.

[53] The appellant did not attempt to develop his argument on the first and second grounds much beyond complaining of non disclosure. In particular, he did not explain what difference disclosure of the complainer's statements might have made. He then turned to the third ground, again citing English cases on abuse of process (supra). Under reference to Green v HM Advocate 1983 SCCR 42, the appellant maintained that the "fresh" evidence test had been met relative to CL's statement.

[54] In respect of ground 4, the appellant again made passing reference to the names of certain cases on disclosure, adding to them the citation of Rowe and Davis v United Kingdom [GC] 2000-I (16 February 2000). The appellant maintained that his character had been attacked at the trial. The police ought to have investigated the complainer's character and disclosed the resultant information to him. The appellant referred to the principle of equality of arms and to further English abuse of process cases, namely: R v Rotherham JJ ex parte Brough [1991] COD 89; R v Telford JJ ex parte Badhan [1991] 2 QB 78; R v Great Yarmouth Magistrates ex parte Thomas [1992] Cr LR 116; R v Rotherham JJ ex parte Brough [1991] COD 89; and Attorney General's Reference (No 2 of 2001) [2004] 2 AC 72.

[55] On ground 5, the appellant contended that the police had lost all objectivity in examining the complaint against him. They had had insufficient evidence following the incident in August and it was only after the assault on the police constable in the October that further action was taken. There had been so many failures that the whole process had become "contaminated" and amounted to an abuse of process and power. The appellant complained that he had spent 2,000 days in prison, but he later accepted that this had been exaggeration.

[56] The appellant complained that the report from Professor Hindmarsh had not been lodged, although the Advocate Depute interrupted to make reference to a section 67 notice, which confirmed that it had. At one point, the appellant appeared to be maintaining that material such as the CCTV footage would have shown that the complainer had not been drunk, despite his position at interview. Equally, contrary to his earlier position, he contended that proper investigation would have revealed that he had assisted the complainer to obtain a taxi.

[57] The appellant referred, without any particular direction, to several other cases including: R v Birmingham [1992] Crim LR 117; Burzala v HM Advocate 2008 SCCR 199; R (Ebrahim) v Feltham Magistrates' Court, Mouat v DPP [2001] 1 WLR 1293; DPP v Hussain [1994] 158 JP 602; Rose v HM Advocate 2003 SCCR 569; McQuade v Vannet (supra); and R v Merthyr Tydfil Magistrates Court and Day ex parte DPP [1989] Crim LR 148. On the presumption of innocence he quoted from Constitutional Court in State v Coetzee [1997] 2 LRC 593 (Sachs J at para 220) and Salabiaku v France [1988] 13 EHRR 379 (at para 28).

(b) RESPONDENT

[58] The Crown were not in a position to deal with content of Professor Barclay's statement, which contained a number of contentious allegations. The appellant's ground of appeal 5(v) concerning forensic evidence was restricted to the "medical or forensic examination" of the appellant himself (i.e. not of the complainer's clothing), and that within the context of systemic police failures to investigate the case properly. The manner in which the case was now being presented was as a "non-disclosure" point relative to forensic findings and, possibly, as a fresh evidence submission. The allegation was that the crown had deliberately withheld tapings, showing the absence of fibres, and laboratory notes referring to the presence of semen on the trousers. However, the notes had been given to the SCCRC and they had instructed an expert (Dr Linacre) to look at both the notes and the clothing itself. The appellant had not attempted to recover the notes from the SCCRC. He had subsequently asked the Crown for copies, but the Crown had declined; not unreasonably given the absence of a relative ground of appeal. In April 2009, the Crown had told the appellant's agents that they had no objection to the defence obtaining the notes from the laboratory but, so far as the Crown were aware, no attempt to do this had been made. The matter had been revisited by the agent in November 2009, when the Crown again expressed their lack of objection. The appellant then requested the SCCRC for the notes on 22 December 2009.

[59] The allegation had become one of deliberate withholding of forensic evidence in the appellant's favour. But it had never been the position that any forensic examination had produced material favourable to the appellant. The Crown had never had a forensic science report. From 18 to 24 October 2001, the forensic laboratory had carried out a preliminary examination of some of the material submitted to them. On 23 October, they had faxed a report to the police which stated only that traces of semen had been found on the external vaginal swab taken from the complainer. Tapings had been taken from the trousers and no fibres had been found. However, this was not reported as evidentially significant. On 7 November 2001, the forensic laboratory had written to the procurator fiscal stating that their work was "on hold" pending instructions. On 5 February 2002, the procurator fiscal had told the laboratory that there was "no need for forensic science examination". No report was ever requested. The clothes were returned by the laboratory to the police in due course.

[60] As Dr Linacre had reported, there were no fibres found on the clothing but the fabric of the clothing had not been conducive to the retention of fibres. The SCCRC had concluded (para 70) that:

"it cannot therefore be said that any fibres from the applicant's livingroom carpet would have been expected to be found on this clothing if [the complainer] was telling the truth... The Commission does not, therefore, consider that, had a [forensic] report been instructed prior to the applicant's trial, it could have been used to undermine [the complainer's] credibility".

Equally, Dr Linacre had noted the lack of damage to the clothing, but that had been known to the defence and used by them at the time of the trial.

[61] In order to deal with the submissions of non-disclosure and additional evidence, the appellant would require a proper ground of appeal, to which the Crown would require an opportunity to respond. In particular, the Crown would have to consider whether the statutory "reasonable explanation" test had been met, given that the defence had been aware prior to the trial that the complainer's clothing had been seized by the police. They knew what the respective positions of the complainer and the appellant were in relation to where sexual intercourse had taken place. The defence had pointed to the absence of forensic findings at the trial. It was very difficult to get round the fact that they could have had the clothing forensically examined.

[62] On grounds 1 and 2, the complainer had given a signed statement to the police on 12 August in which she had said that she had "continued to shout" during the rape. Her evidence at the trial had been that she had not shouted. The content of the statement had been disclosed to the defence in that the "line of evidence" given to them was in identical terms to the police statement, with personal details excluded and the "embargo" added. This approach was in line with the law as it was then understood to be. The defence had also been aware, from the terms of the police interview, that the police were saying that the complainer had told them about shouting during the incident.

[63] The Crown had a duty, both at common law and in terms of Article 6 of the European Convention on Human Rights and Fundamental Freedoms, to disclose, in advance of trial, information in their possession which was capable of either weakening the prosecution case or strengthening the defence case: McLeod v HM Advocate (No 2) (supra); McDonald v HM Advocate (supra, Lord Rodger of Earlsferry at para 50). However, "it by no means necessarily follows" that failure to disclose material has resulted in an accused not having a fair trial and thus suffering a miscarriage of justice (Lord Rodger, op cit. para 77). Although, in terms of Holland v HM Advocate (supra) and Sinclair v HM Advocate (supra), all statements are now disclosed as a matter of routine, it did not follow that a failure to do so would amount to a breach of the obligation to disclose, far less that it would result in an unfair trial. In order to demonstrate unfairness, an appellant required to satisfy the court that: (i) the statement was disclosable upon the McLeod test of whether it materially weakened the Crown case or bolstered the defence; and (ii) the non-disclosure had resulted in a miscarriage of justice. It was not sufficient that denial of access to a particular statement "might possibly" have affected the outcome of the case (cf Hogg v Clark 1959 JC 7, LJG (Clyde) at 10; Holland v HM Advocate (supra), Lord Rodger at para 82). In determining whether a miscarriage had occurred, a "robust" test was required (McInnes v HM Advocate 2008 SCCR 869, LJG (Hamilton), delivering the Opinion of the Court, at para [20])

[64] The complainer's statement would be disclosed now as part of a class of documents. However, it neither undermined the Crown case nor bolstered the defence position since it was wholly incriminating. What made it disclosable was that the complainer gave evidence to the effect that she was not shouting at the material time. The statement only then became of potential significance. In terms of section 263(4) of the 1995 Act, it could have been used to confront the complainer with a different version of events. It was accepted that the Crown's duty to disclose was spontaneous, did not depend on a request from the defence and was not complied with. But in determining whether the appellant had had a fair trial, the fact that the appellant knew of the content of the statement was relevant.

[65] Whether a miscarriage of justice had occurred depended upon whether the lack of access to the statement had produced a "real risk of prejudice" to the defence (McInnes v HM Advocate (supra) at para [20], following Kelly v HM Advocate 2006 SCCR 9, Lady Cosgrove, delivering the Opinion of the Court, at para [33]). No miscarriage of justice had occurred. First, although the statement had not been disclosed as such, its content had been, in the form of the line of evidence. The appellant and his representatives had been fully aware of that content and, in particular, the assertion of shouting. Secondly, the appellant had the same information from the alternative route of the interview of the appellant. The appellant's counsel had taken from the police officer interviewing the appellant (DC Iain Thompson, transcript p 86) that he had put it to the appellant that the complainer had been shouting and that the officer "had information presumably from her that she was continually shouting during this episode". The issue had been mentioned by the appellant's counsel in his speech to the jury. The trial judge had pointed out that there was no evidence to prove that the complainer had said this to the police, but he had not given this direction in a manner which sought to undermine the appellant's credibility.

[66] Despite the embargo, the appellant's counsel could have used the line of evidence under section 263(4), had he seen fit to do so. He did not need the written document to put a conflicting prior statement to a witness (Orr v Brown (supra), Lord Marnoch, delivering the Opinion of the Court, at para [4]). The defence had used the various different versions of events given by the complainer in statements to the first police officers she had met. Both Constables Chapman and Pettigrew had been on the list of witnesses and, in accordance with practice at the time, they would have provided their statements to the defence in lieu of precognition. The statements of both constables referred to the prior statements of the complainer relative to the rape having occurred in the lane. The defence had used these prior statements to undermine the complainer's credibility. They had also done so in relation to what the complainer had told CL.

[67] The defence had had an option; a tactical decision to take, in relation to the shouting, or its absence. They could have put it to the complainer that she had previously said that she had been shouting. In that event, there was the risk that she might have agreed with that, having been reminded of what she had said at the time. There was also the risk that this would have given the Crown the opportunity to use other parts of her statement to bolster her credibility. Alternatively, the defence could have used the absence of shouting as a factor in their favour. They chose the latter course, even though they also attempted, but only when addressing the jury, to use the discrepancy between her evidence and what she had supposedly told the police in her statement. The trial judge had correctly directed the jury on this point, but he had not directed the jury that they could not have regard to the discrepancy. The SCCRC's final reasoning (supra para 222) had applied the wrong (i.e. Hogg v Clark (supra)) test. They had also drawn the unjustifiable inference that, because the statement had not been formally disclosed, the appellant's counsel lost the opportunity to put the content of her statement to the complainer.

[68] On ground 3, the Advocate Depute explained that the SCCRC had taken a statement from CL via a video link to Inverurie police office on 31 January 2006. The precise terms of this in relation to the complainer's condition were:

"She seemed annoyed. I wasn't sure why this was at the time, but she had been annoyed in the past as I had been in a relationship with her but had broken it off. I thought that this might have been the reason why she was annoyed on this occasion. She still used to come round and see me and have tea, despite me having broken off the relationship. I had no suspicion about what was actually wrong with her at that stage..."

He had confirmed the nature of his relationship as set out in the SCCRC reference.

[69] In order to satisfy the additional evidence test, as the SCCRC recognised (para 227), the Court had, first, to be satisfied that the evidence was capable of being regarded by the jury as credible and reliable (Al Megrahi v HM Advocate 2002 JC 99, LJG (Cullen) delivering the Opinion of the Court at para [219]). CL was not being proffered to the court as a witness in the appeal. The Crown therefore had no opportunity to challenge his evidence. It was accepted initially that, if CL were capable of offering an alternative explanation as to why the complainer was in the mood she had been in, this might have been admissible as evidence of his impression at the time. But, having considered the precise content of the statement, this evidence appeared objectionable as immaterial. Secondly, the court had to be satisfied that there was a reasonable explanation for the evidence not being adduced at the time. CL had given evidence, but he had not spoken about his having been in a sexual relationship with the complainer, as he had not been asked about this. Yet he could have been precognosced on this (Fraser v HMA 2008 SCCR 407, LJ-C (Gill) at para [144]). He had been included in a list of persons said by the appellant's agents not to have co-operated in the precognition exercise, but the court should not infer that he had thereby refused to be precognosced. In any event, as the appellant's counsel had told the SCCRC (para 232), it was doubtful whether he would have adduced the evidence of the complainer's prior relationship with CL as questioning on this might have had a negative effect on the jury. Thirdly, the Court had to be satisfied that this evidence was material. Taking it at its highest, it amounted to a possibility of an alternative explanation for the complainer's annoyance. The issue was not what CL had thought might be the reason for the complainer's condition, but why she was in that condition. CL had known nothing of what had occurred earlier and was therefore hardly in a position to offer a view. The cause of the complainer's condition was a matter for the jury and not for CL's speculation.

[70] On ground 4, the Advocate Depute explained that a charge had been made against the complainer during the time between the incident involving the appellant and the trial. The complainer's estranged husband had telephoned his daughter, then aged 11, and was told by her that she was home alone. The husband was unhappy with this and telephoned the police. When the police called at the house, they found the child to be safe and well. Nevertheless, the complainer was cautioned and charged. She was told that the matter would be reported to the procurator fiscal. She was subsequently interviewed by the police. Following that, a Detective Inspector decided that no report was necessary and none was made. The Northern Constabulary considered that this decision had been wrong.

[71] The issue was whether non-disclosure of this material deprived the appellant of a fair trial. Although the SCCRC had not thought that this matter would, of itself, have merited a reference, it had been elevated in the Note of Appeal into a discrete ground of appeal. But it had never been the law that the Crown were required to disclose every summary charge made against a complainer. In Holland v HM Advocate (supra), there was a clear connection between the charges against the complainers, who had been assaulted, and the subject matter of the trial. The case could not be read as indicating that every charge against a complainer had to be disclosed. There was no duty to disclose this particular charge (see Murtagh v HM Advocate 2009 SCCR 743). Even if there were such a duty, no miscarriage of justice could be said to have occurred. The charge was a minor one. It did not involve any dishonesty, such as might undermine credibility, and it had no connection with the events involving the appellant. Any attempt to lead this evidence could have been objected to as inadmissible (Moir v HM Advocate 2007 JC 131).

[72] On ground 5, the Advocate Depute conceded that, as a generality, even if there had been no deliberate action on the part of the police to suppress evidence, a trial could be unfair because of the loss of evidence caused by mere bungling. The test was one of oppression: were the errors so great that the appellant had been deprived of the possibility of a fair trial. That test had not been met. Furthermore, the appellant's counsel had been entitled to, and did, found upon the shortcomings of the police investigation at the trial, notably in his speech to the jury. The SCCRC had overlooked this in their analysis.

[73] The CCTV footage of events at the club had been looked at by the police. Although it was of poor quality, it was noted that it contradicted the complainer's account of being forced from the club. However, once the complainer's account had changed, an instruction had been given not to seize the tapes. A note was taken that the footage showed the complainer leaving the club with a male, who had his arm around her shoulder. There was no dispute at the trial that the complainer had left the club voluntarily, so the footage was of no material importance and its absence at the trial caused the appellant no prejudice. The test was whether the absence of the footage had caused such grave prejudice that a fair trial could not take place (McQuade v Vannet (supra); Fox v HM Advocate 2002 SCCR 647, Lord Hamilton, delivering the Opinion of the Court, at 654). In relation to the CCTV coverage of the outside of his flat, the appellant had not suggested that it would have shown anything significant. The complainer had admitted falling out of the car.

[74] Evidence from the staff and customers at the club could not have added anything significant, since the complainer had left voluntarily. In fact, DS had been a patron of the club and had been called to speak to events there. The appellant could have called his friends to give evidence to events in the club. One of those, namely BB, had been on the defence list of witnesses.

[75] It was accepted that the taxi driver would have been the first person met by the complainer after the incident, but by October 2001, he could not be traced. But it was not suggested by the complainer that she had been displaying any signs of distress when in the taxi. Indeed in her statement of 12 August, which was disclosed in the form of the line of evidence, she had said that she had not been showing such signs. Thus, even if the driver had been found, and had remembered the complainer and had said that she had not looked distressed at that time, this would not have added anything material.

[76] Telephone records could have assisted with timings had they been recovered at the time. But it was not disputed that the telephone calls had occurred and therefore the absence of the records was not of significance.

[77] The final complaint was failure to examine the appellant and his clothing. The contention was that the former might throw light on whether the appellant had performed oral sex on the complainer. But there was no evidence to suggest that such an examination could have done this. The appellant was only seen on the Monday morning, when he was interviewed; by which time, on his account, he had had a further sexual encounter with another woman. Similar considerations applied to an examination of his clothing.

6. Decision

(a) Professor Barclay's Statement

[78] There is no ground of appeal covering either non-disclosure of scientific evidence or the existence of additional scientific evidence. The appellant's submissions on these matters must be rejected on this basis alone. Where a reference has been made by the SCCRC under sub-section 194B of the 1995 Act, the appellant requires to lodge a Note of Appeal (Act of Adjournal (supra) rule 19B.1(2)) and, in terms of sub-section 110(4), he cannot, without leave of the Court on cause shown, found any aspect of his appeal on a ground not contained in the Note. As already observed, this appellant has had more than ample time to ingather any evidence required for the presentation of his appeal, including time to seek orders from the court requiring disclosure of any potentially relevant material. He has had ample time to frame his grounds of appeal and, if advised, to seek leave to amend these grounds. On the eve of his appeal hearing, the appellant produced a "written statement" of Professor Barclay which comments on the state of disclosure of the scientific evidence at the time of the trial and the potential for re-examining clothing and tapings. All of this appears to be a very belated attempt to find material which might undermine the complainer's account of the rape. These comments had not been intimated in advance to the Crown. In these circumstances, the Court does not consider that cause has been shown for entertaining grounds beyond those already stated in the Note of Appeal.

[79] In any event, there appears to be little of significance in the appellant's contentions. Notwithstanding the time constraints, the Crown were able to deal with the issue of disclosure of scientific material. It is apparent that there was an initial examination of the complainer's clothing by the forensic laboratory and a brief report about the finding of semen on the vaginal swab was faxed to the police. Standing the appellant's admission of intercourse, a decision was taken not to instruct any further scientific examination. The appellant's representatives were well aware that the complainer's clothing had been seized. They were apparently content with the information, which they used at the trial, that there was no damage to the complainer's clothing. Given the admission of intercourse, the presence of semen on the trousers neither undermines the crown case nor does it bolster that of the defence. Nothing could turn on that scientific fact. In these circumstances, there appears to be no substance in the complaint about non disclosure of the faxed report or the knowledge that there were semen stains on the trousers.

[80] If the appellant were seeking leave to introduce additional evidence in connection with scientific findings as a ground of appeal, then he would have to demonstrate that there was "a reasonable explanation" as to why such evidence was not presented at the trial (1995 Act ss 106(3A). It is not immediately obvious how the appellant could meet that test. Prior to the trial, it was known by the appellant that the complainer was maintaining that intercourse had occurred on the floor. It was presumably the appellant's position, in terms of his interview, that it occurred on the settee. It was known that the complainer's clothing had been seized. In those circumstances, the appellant could have instructed a scientific analysis of the clothing. It is not at all surprising that the defence representatives did not instruct such a report, standing the state of the evidence. Apart from the trouser chain, the clothing had not been damaged. Such evidence as there was about the clothing at the trial appeared to be, if anything, supportive of the defence position of consensual intercourse. There was no reason for the defence to start exploring lines, such as the presence or absence of semen or fibres, the results of which could have been entirely counterproductive.

[81] For an additional evidence ground to succeed, the appellant would have had to be able to demonstrate that the additional evidence was potentially of such significance that its absence at the trial amounted to a miscarriage of justice. There is no such evidence, since Professor Barclay has not made an examination of the clothing and/or tapings. He has expressed no scientific conclusions based on such an examination. So far as the material before the Court is concerned, Dr Linacre's view is that the absence of fibres on the clothing is not significant. Even if that absence were capable of demonstrating that it was unlikely that the appellant had sexual intercourse with a clothed complainer whilst on the floor, the Court is not persuaded that this even points in the direction of a miscarriage of justice. The precise location of the act of intercourse in the livingroom of the appellant's flat was not the principal issue nor was whether the complainer still had her trousers and/or pants on during intercourse. The issue was whether, wherever and however the intercourse took place, it was achieved by force, as maintained by the complainer in evidence, or of consent, as contended by the appellant at interview. In any event, it was the complainer's position that intercourse had occurred after her trousers and pants had been removed. The appellant appeared uncertain at interview on the subject. In short, upon the limited material provided by the appellant, the Court is not persuaded that there might be even an arguable ground based upon potentially significant additional scientific evidence in relation to the complainer's clothing.

(b) Disclosure (grounds 1 and 2)

[82] It is accepted that, in accordance with the principles of disclosure set out in McLeod v HM Advocate (No 2) (supra) and McDonald v HM Advocate (supra), at least once the complainer had testified that she had not shouted out during the course of the incident, there arose an obligation on the Crown to disclose the complainer's statement of 12 August. Strictly, that obligation was not fulfilled. However, this point is entirely academic. The appellant's representatives were well aware that, when interviewed by the police on that date, the complainer had said that she had shouted. They knew this, first, from the line of evidence given to them and, secondly, from the content of the police interview, which made specific reference to the complainer telling the police that she had been shouting.

[83] The discrepancy in relation to shouting pales into insignificance when considering the other discrepancies in the complainer's accounts. The latter included, for example, whether she had been forced out of the club, whether she had been raped in a lane near the club and whether she had been punched on the nose. It is readily apparent from the transcript of her cross-examination that the appellant's counsel was well aware of what the complainer had said to the police and others at various times after the occurrence of the incident. He was in a position to put such discrepancies as he desired to the complainer; and it is clear that he did exactly that. The SCCRC concluded (para 223) that "In failing to formally disclose (sic) the statement, the opportunity for counsel to consider the possibility of putting to [the complainer] the discrepancies in her evidence as compared to the terms of her police statement was lost". There is no basis for that conclusion. The appellant's counsel was aware of what the complainer had said in this regard. He required to take a tactical decision on whether to challenge the complainer further in the witness box by using this specific additional discrepancy or whether to accept her evidence that she had not shouted and to use that to undermine the general credibility of her account of forcible rape.

[84] Not surprisingly, counsel elected not to put the inconsistency to the complainer. The reasons for that are obvious. First, he already had a plethora of inconsistency to work with in cross-examination. Secondly, putting the inconsistency to the complainer might have persuaded the complainer to alter her position by recalling that she was shouting. Thirdly, to use the statement would have permitted counter use of its content by the Advocate Depute to bolster credibility in re-examination.

[85] Despite the terms of the written "embargo" on the line of evidence revealed to the defence, there was nothing to prevent the appellant's counsel putting to the complainer that she had previously made an inconsistent statement to the police to the effect that she had been shouting at the material time (1995 Act s 263(4); Lord Marnoch in Orr v HM Advocate (supra)), and, if advised, proving that she had done so. But this would have had the most peripheral effect on credibility and reliability standing the more obvious material at counsel's disposal.

[86] As matters transpired, the appellant's counsel attempted both to use the complainer's evidence of lack of shouting to undermine her evidence of rape and, at the same time, to draw the jury's attention to the police evidence that the complainer had told them that she had been shouting. The trial judge had correctly advised the jury that there was no competent evidence of what the complainer had told the police in that regard, since no police officer spoke to that. But he did not go further, as he might have done, and invited the jury to ignore the defence contention of a discrepancy between the complainer's testimony and her statement on this point.

[87] In short, no miscarriage of justice could have occurred as a result of non disclosure of the complainer's statement. Even if the appropriate test for determining whether a miscarriage of justice had occurred had been the "might possibly" one referred to by Lord Rodger in Holland v HM Advocate (supra at para 82) and derived from the Lord Justice General's remark in Hogg v Clark (supra at 10), the appeal on grounds 1 and 2 would have been bound to fail. As matters now stand (McInnes v HM Advocate [2010] UKSC 7, Lord Hope at para 24) there is no real possibility that the jury would have reached a different verdict had the statement been handed over to the defence in advance of the trial.

(c) Additional Evidence (ground 3)

[88] The additional evidence appears to consist, first, in the fact that the complainer and CL had been in a sexual relationship some seven months before the incident and, secondly, that, in 2006, the witness thought that one reason for the complainer's mood might have been related to that relationship. The test for the admissibility of additional evidence is set out by the Lord Justice-Clerk (Gill) in Fraser v HM Advocate (supra, at paras 131 - 134). The appellant must first provide a reasonable explanation as to why the evidence was not heard at the trial. For present purposes, the Court can accept that the appellant was not able to precognosce the witness because of his unwillingness to engage in that process. In these circumstances, it could be said that there was a reasonable explanation for the appellant's counsel not having been aware of the precise, including the sexual, nature of the relationship between the witness and the complainer. But this is putting a very favourable gloss on the appellant's argument, since the court has little doubt that counsel would have been quite capable of concluding that there was, or had been, a relatively close relationship between the complainer and CL given the complainer's ability to call upon the witness's hospitality, with little prior notice, in the early hours of the morning. Subject to a potential objection to admissibility, the appellant's counsel could have probed the extent of that relationship, had he thought it prudent to do so.

[89] It must be a pre-requisite of the application of the statutory provisions on additional evidence (1995 Act ss 106(3) and (3a)) that the evidence could competently have been admitted at the trial. The fact that the complainer had had a sexual relationship with the witness is struck at by section 274(1)(b) of the 1995 Act and it is highly doubtful whether the Court would have been prepared to allow questioning in relation to it under section 275, given that it appears so collateral to events occurring at or around the date of the libel. But even if it had, the issue remains of whether evidence of what the witness thought might have been the reason for the complainer's annoyance would have been admitted. It is conceivable that it might have been admissible if the witness had, at the time, formed an impression of the cause; at least if that cause were based on some fact occurring at the time. However, that is not what the witness did. From the statement produced, he did not form any such impression at the time. This is not surprising, given his ignorance of any prior incident. The witness offers to speculate now on what might have caused the complainer's annoyance, looking at matters with the benefit of long distance hindsight. Such evidence would have been objectionable at the trial on that basis. Even if it had not been objected to, its nature is so peripheral that the court cannot regard any volunteered explanation as of potential material assistance to the jury in their consideration of the issues at the trial (Fraser v HM Advocate (supra) LJ-C (Gill) at para [132]).

(d) Charge of Child Neglect (ground 4)

[90] It is important to keep firmly in mind the law of evidence in relation to attacks on the character of complainers both at common law and in terms of the 1995 Act. The approach of both the appellant and, to a lesser degree, the SCCRC seems to be that such attacks are generally permissible. The opposite is the case. At common law, evidence of the character of witnesses (including complainers), whether good or bad, is generally inadmissible because it is collateral to the facts in the libel (see e.g. Jas. Reid (1861) 4 Irv 124; and generally Walker and Walker: Evidence (3rd ed) para 7.1.1). The jury require to determine credibility and reliability of witnesses having regard to their demeanour in court, the inherent likelihood of their accounts and the manner in which these accounts dovetail with other evidence in the case. There are sound policy reasons for this rule. First, a witness is not normally in a position to lead evidence to rebut any attack on him in the course of a trial (hence the need for advance notice in the case of complainers). Secondly, adducing evidence of witnesses' lives, including those of complainers, would substantially prolong the length of trials and would be likely to obscure the true issues. In accordance with these principles, there is no general duty on the Crown or the police to carry out investigations into the character of witnesses, including complainers.

[91] Traditionally, the main exception to the general rule concerning attacks on the character of witnesses, including complainers, has been that previous convictions may be proved (Dickson : Evidence para 1617), where these: (a) have the potential to undermine the credibility and reliability of the witness's testimony; or (b) have a direct bearing on proof of the facts libelled. If there had been no conviction, no proof of the particular act alleged was competent (Dickson op. cit. para 1618; Jas Irving (1838) 2 Swin 109, LJ-C (Boyle)). The use of convictions was, and still is, regarded as the only acceptable mode of proof of a witness's misdemeanours because they are instant judicial declarations of past conduct; not subject to challenge by the production of counter evidence of fact. But it is not every conviction that may be put; only specific types. Convictions for dishonesty may be used to prove that a witness is not to be relied upon as generally truthful. Convictions for violence may be used to demonstrate that a complainer in an assault case is of a violent disposition, but only in cases where that is relevant (ie where self defence or provocation are pled). Historically, until the advent of sections 274 and 275 of the 1995 Act, evidence of bad moral character in relation to sexual matters was, somewhat anomalously, admissible in prosecutions for rape and similar offences. But that is not the type of conduct in issue here.

[92] Proof of the existence of a charge (i.e. not even a conviction) of child neglect against a complainer in this type of case would have been inadmissible even at common law. The applicable provisions of section 274 at the time of the trial are not of themselves significant in that regard, although they too strike at this type of attack on character. The existence of the charge could not have been revealed at the trial. It could not have been used to damage the character of the complainer or of the police officer who determined not to report the matter to the procurator fiscal.

[93] Of course, the fact that evidence of a charge is inadmissible does not necessarily mean that it ought not to have been disclosed. Evidence of the existence of the charges in Holland v HM Advocate (supra) may not have been admissible, but, given the linkage of the nature of the charges to the libel in that case, a duty of disclosure of known charges still arose (Lord Rodger at paras [73]-[74]). The Court notes that the Supreme Court of the United Kingdom has expressed a view on the law of evidence in Scottish criminal cases to the effect that it has long been established that unproved "charges" can be put to a witness on the basis that the existence of such charges might make the witness less trustworthy in the minds of the ordinary citizen, and hence, presumably the jury (Allison v HM Advocate) [2010] UKSC 6, Lord Rodger at para 9 et seq under reference to a case of some antiquity mentioned briefly in Bell's Notes to Hume). But, even in the case of convictions, having regard to a witness's right to respect for his private life, there is a limit on what is disclosable (HM Advocate v Murtagh 2009 SCCR 790, Lord Hope of Craighead at paras 31-32). The convictions and charges require to be potentially material. The fact that the complainer in this case had been charged with what appears to have been an entirely trivial episode of possible child neglect could have had no material bearing on the issues in the appellant's trial. It was of no moment whatsoever in relation to the complainer's credibility and reliability. Its disclosure could not have led to the discovery of any other relevant material evidence either. The existence of the charge, and the failure to report it to the procurator fiscal, could not possibly have had any effect, even if it had been admissible as evidence, on the jury's deliberations. This ground of appeal thus falls to be rejected.


(e) Police Investigation Deficiencies (ground 5)

[94] A number of preliminary points are worth making. First, one impression that the reference from the SCCRC gives is that they must have viewed the abilities of the appellant's senior counsel, and his agents, at the trial as being very limited. In particular, they seem to have a low opinion of their abilities to be aware of the likely availability of evidence, such as CCTV footage and scientific or medical material, and to deploy its presence or absence in the manner best suited to achieve an acquittal. The reference suggests that the SCCRC do not take into account trial counsel's capacity to decide, as an experienced criminal practitioner, what lines of inquiry to pursue in advance of trial, what lines of cross-examination to adopt and which, in each instance, studiously to avoid.

[95] Secondly, it is counsel and agents at the trial stage who presumably knew what the appellant's position then was. In that connection, as has been said in other cases, this Court was not provided with any contemporaneous material stating just what that position was beyond the content of the appellant's earlier police interview. It is not obvious that the SCCRC had any other material either; yet it is that type of material that can best advise on just what the defence did know, or wanted to know, at the critical time, when preparing for and appearing at the trial, and whether therefore any miscarriage of justice occurred. Any exercise carried out in the absence of such material is bound to carry with it an air of the academic.

[96] Thirdly, the process of appeal, which Parliament has provided the Court must follow, involves the imposition of time limits for the lodging of such grounds of appeal as an appellant wishes to present. Prior to that, at the trial stage, there are basic rules laid down for parties to follow if they wish to tender a plea in bar of trial. Where a party is aware of certain facts, such as deficiencies in the investigation of his case, which he regards as oppressive at common law or unfair in Article 6 terms, he has the opportunity to present these to the court of first instance. If he has objections to the evidence to be led, he is expected to make his objection at the appropriate time. If it appears, during the trial, that the deficiencies have deprived a party of a fair trial by reason of oppression or Article 6 unfairness, he may move the court to desert the diet for that reason. In any of these situations, if the party elects not to pursue these remedies, it ought to be regarded as at least difficult for him to maintain later that a miscarriage of justice has occurred because of circumstances which could have been focused upon at first instance.

[97] Equally, if an appellant also declines to present his complaints of oppression or unfairness to the Court, it is not easy to see how it can be said to be in the interests of justice, having regard to the limited resources which the court system has and the need to use these resources for all appellants, to allow these to be raised for the first time after the refusal of an appeal process, in which these complaints were deliberately not made. This is, in some measure, what has occurred in this case under this ground. Thus, in his original appeal, the appellant had complained that his representatives had failed to adduce evidence of events in and around Franklyn's, from his neighbour SC concerning shouting, and the content of the Hindmarsh report. The appellant abandoned those lines in the course of his appeal, yet is permitted to re-raise these issues, at least in part, in this process.

[98] In delivering the Opinion of the Court in Stevenson v HM Advocate 2008 SCCR 307 (at para 22) and following the delay case of McFadyen v Annan 1992 JC 53, Lord Nimmo Smith said this upon the subjects of oppression and fairness in advance of trial:

"...the question for the court was whether there was such prejudice to the prospects of a fair trial that it would be oppressive to require the accused to face trial, the test of oppression being the same in such cases as in any other situation. In solemn proceedings, the court required to ask whether the risk of grave prejudice to the prospects of the accused receiving a fair trial was so grave that no direction by the trial judge to the jury could be expected to remove it".

Of course, such a plea may be difficult to sustain in advance of a trial (see eg McQuade v Vannet (supra), Lord Sutherland, delivering the Opinion of the Court, at 20). But there will certainly be cases where it may be successful; notably where, under the common law rules of evidence, production of a particular article, proof of the state of which is essential, cannot be achieved (see Lord Nimmo Smith op cit para [19] under reference to Maciver v Mackenzie 1942 JC 51 and the locus classicus, Anderson v Laverock 1976 JC 9). The alternative in that type of case, however, is to object to any testimony concerning the state of the article. In that situation, the Court may be reluctant to sustain a plea of oppression, without full knowledge of the evidence, when such an objection will eliminate the particular unfairness at the stage of (or now, in solemn cases, in advance of) trial.

[99] It is accepted by the Crown that, as a generality, the loss of a critical piece of evidence as a result of police bungling, as distinct from deliberate suppression, may result in the prosecution of an accused being deemed oppressive at common law and unfair in Convention terms. Outwith the traditional area where proof of a lost item is essential, the Court is unaware of a case in Scotland in which this has successfully been pled either at, or before, trial or on appeal. It is a matter which may require further consideration in an appropriate case. Certainly, where there has been unreasonable delay in the prosecution of a case, potentially leading to a breach of the reasonable time constraint in Article 6, the loss of evidence may have a significant part to play in a decision to sustain a plea in bar (see in Europe Sofri v Italy (supra); and in England Altaf v CPS, West Midlands (supra) and R v Bow Street Metropolitan Stipendiary Magistrate ex parte DPP (supra)). But that is a far cry from the situation where there has been no inexcusable delay, but a mistake has caused a piece of evidence, not essential for proof of guilt, to be lost. In that type of situation, the approach of the law of evidence to date has been to allow secondary or indirect methods of proof rather than to bar the trial (cf in England R v Birmingham (supra)). Thus, in this case, if important but not critical CCTV footage were deemed lost, but someone had viewed the footage before destruction, that person could be permitted to speak to what he had viewed, at least if the evidence were to be introduced by the party who had not caused the destruction. That could have been done by the appellant here by adducing PC Crighton.

[100] The absence of any plea in bar or motion to desert the diet on the grounds of unfairness may not preclude a convicted person from complaining of a breach of his Article 6 rights at the stage of an appeal. But in determining whether a miscarriage of justice has occurred, the absence of an earlier objection of unfairness may lend some weight to a contention that no unfairness has occurred. In the appellant's case, the Court has no doubt that the appellant's counsel and agents would have been likely to have been aware of most, if not all, of the matters said to amount to deficiencies in the investigation specified in this ground of appeal. They would have been aware, for example, that there would have been footage from CCTV cameras in the vicinity of a popular nightclub in the centre of Aberdeen. The appellant would have been aware of the existence of cameras both at the club and his own flat entrance.

[101] The appellant's counsel made little of the absence of the CCTV footage at the trial because, standing the state of the evidence at the trial, it was without significance. There was no dispute that the complainer had left the club voluntarily, yet she had earlier said something completely different. The CCTV footage would at best have confirmed the complainer's evidence at the trial. In any event, as noted above, if the appellant's counsel had wanted to prove what the CCTV footage in the club had shown, he could have asked DC Chapman about it and led DC Crighton to speak to what he had seen on the tape. Such evidence would have been admissible at the instance of the defence, given the deletion of the original recording. The fact that the appellant's counsel did not go down that route is entirely understandable as the content of the CCTV footage both at the club and at the appellant's flat added nothing to what was already known.

[102] The appellant's counsel was aware of the presence of the appellant's friend BB in the club, and, no doubt, had a precognition from him. He elected not to call him. That is again understandable. It was not suggested that anything untoward had happened in the club. In that situation, no competent counsel would have attempted to gild the lily by leading evidence to prove undisputed fact. Had he attempted to lead BB to speak to acts of intimacy in the club, this might have been the subject of adverse comment in the absence of it being mentioned in the appellant's interview

and not referred to by DS in her evidence. Furthermore, it appears to be the case that BB was of the view that the complainer was very drunk by the time she had left the club, and such evidence may not have helped the appellant's cause. In short, calling BB would have been a risky strategy.

[103] Similar considerations apply to calling the appellant's neighbour, who is said to have heard nothing. But the appellant himself said in interview that he would not necessarily have done so because of the volume of music which he was playing. There is no indication that the neighbour heard this music either.

[104] There is no doubt that the police could have pursued other lines of enquiry shortly after the incident had been reported to them. They could have attempted to trace the taxi driver. They might have been successful and he might have remembered the complainer. But even if he had been able to remember the condition of the complainer when he picked her up from Bridge of Don and had spoken to the absence of signs of distress, this would not have advanced the appellant's position. There was no contrary evidence that the complainer was showing signs of distress at that time. Similarly, recovery of the complainer's mobile telephone records may have assisted in establishing times with greater accuracy than the witnesses were able to recount, but it was not disputed that the calls were made and recovering the records would not have assisted beyond timings. These possible lines of enquiry are little more than speculations of what might have been, if the police investigation had been conducted differently. There is nothing in them to suggest that, had they been carried out, there is a real possibility that the verdict of the jury would have been different.

7. Conclusion

[105] The points raised in this appeal are essentially matters of fact which the appellant maintains might, or perhaps would, have made a difference in the jury's deliberations. But the reality is that this was a complainer who was demonstrated to have given different accounts to the police and others after the occurrence of the incident. The defence brought out a number of points in favour of the defence position, including the lack of damage to the clothing. There was ample material available at the trial which could have persuaded the jury that there was a reasonable doubt about the guilt of the appellant. But, the jury had no reasonable doubt and it is easy to see why. Although there were substantial variations in the complainer's early accounts, she ultimately spoke clearly to leaving the nightclub, ending up at the appellant's flat and being raped by him.

[106] Despite the Advocate Depute's startling concession, the evidence of the bruising to the complainer's breast, arms, thighs and buttocks must have seemed to the jury, as it does to this Court, to be of some note. The ornamental chain of her trousers was broken. In addition, it was not disputed that the complainer had left the appellant's flat abruptly. She did not go home, as might have been anticipated after a consensual event, but went first to a male friend's house in the early hours of the morning in a distressed state. When she left his flat, she still did not go home, but called a female friend to pick her up from a shopping centre some time around 3.30 am, when she was witnessed still to be in a state of distress. In addition, there was the appellant's own account where, at parts of his interview, he accepts that he escorted the complainer to his flat when he knew she was in a drunken state. He admitted that things "got a wee bit out of control" at some point, albeit that he had an alternative explanation for this. He admitted that he did not provide the complainer with his name or address, so that she could telephone a taxi. The jury would have been entitled to regard these admissions as highly supportive of the complainer's account and not consistent with an episode of consensual intercourse.

[107] The evidence therefore fully entitled the jury to reach the verdict they did and nothing in the grounds of appeal or otherwise has persuaded the Court that a miscarriage of justice did occur, or even might have occurred, in this case. The appeal is therefore refused.