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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2008] HCJAC 59

Lord Wheatley

Lord Reed

Lord Carloway

Appeal No: XC 360/03

OPINION OF THE COURT

delivered by LORD CARLOWAY

in the referral by the Scottish Criminal Cases Review Commission

D.S.

Appellant;

against

HER MAJESTY'S ADVOCATE,

Respondent:

_______

Appellant: Shead; George Mathers & Co., Aberdeen

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

14 October 2008

The Proceedings at First Instance

(a) General

[1] The evidence against the appellant led by the crown at the trial, were it to be believed, was overwhelming. The jury accepted it and, on 20 October 1999, after a five day trial at the High Court in Edinburgh, found the appellant guilty of a charge libelling that:

"on [Sunday and Monday] 29 and 30 November 1998 at 1 Easter Dalmeny Cottages, Dalmeny, Edinburgh, you did assault [S O M or S], your wife, then residing there...seize hold of her, threaten her, push her into a bedroom, push her onto a bed, forcibly remove her clothing, repeatedly punch and butt her on the head, force her legs apart, apply petroleum jelly to her hinder parts, attempt to penetrate her hinder parts with your private member, and did rape her".

The appellant had instructed Mr Vincent Belmonte, a solicitor very experienced in criminal defence work, to act on his behalf. On or before 6 October 1999, Mr Belmonte instructed Scott Brady, Advocate, to conduct the defence at the trial. At that time, Mr Brady was junior counsel, skilled and also very experienced in criminal cases. A consultation with the appellant was held on that date and another one took place on 13 October, prior to the commencement of the trial.

(b) The Complainer's Testimony

[2] In a report submitted in the context of the appellant's initial appeal, the trial judge narrates that, central to proof of the charge, was the evidence of the complainer. She had been in what had become an unhappy and acrimonious marriage with the appellant. They had moved from London to Dalmeny, where they lived with their two children. The complainer continued to work in the field of accountancy in London, travelling to Dalmeny at weekends. The appellant had been unemployed for some time. The trial judge's report continues:

"The complainer stated that the appellant had been aggressive and unpleasant to her during the course of the weekend, making threats and using abusive language... During the latter part of Sunday 29 November 1998, the appellant had gone out to spend time at the Anchor Inn, a public house in South Queensferry. He had left the house between 8.00 p.m. and 9.00 p.m....

...the appellant had returned home around midnight...very angry and very drunk. He had screamed and bawled at her. He had thrown her onto a bed and tried to remove her clothing, verbally abusing her the while. The complainer had been wearing jogging pants, which were tight; the appellant could not get them down. He had ripped her trousers off. She had wriggled and pushed him away, but he pushed her onto a bed. He butted her on the head several times. The complainer thought that she might have blacked out. The appellant had then torn her underpants off, ripping them into three pieces. He had placed his thumb into her mouth, saying, "I'm going to take your teeth out." The complainer had bitten his thumb and drawn blood. She continued to struggle with the appellant... He had said to her: 'Keep still, you bitch. I'm going to have you. You're my wife.'... At this stage, the children appeared... The appellant...desisted and put them back to bed. Thereafter, he renewed his onslaught on the complainer. She said that he had removed her sweater and possibly her bra. He had taken his own clothes off down to his underpants. He said that he was going to carry out an 'anal rape', saying: 'I am going to have you where no-one else has.' Thereupon the appellant had obtained a pot of Vaseline in order to facilitate this enterprise. At this stage, the complainer had run into the bathroom, to which the children had also come. However, the appellant had put them back to bed again. Thereafter he had dragged the complainer into the bedroom. He had proceeded to make use of the Vaseline to facilitate anal intercourse, which he attempted more than once, but failed. After that, the appellant had pushed her down and had penetrated her forcibly in the vagina. After the completion of this rape, the complainer explained that she had run into the children's room...".

The complainer spoke to a further incident in the morning and described herself being "petrified and numb", before she arose with the intention of driving the children to school as usual. However, at about 8.35 am, she decided that she had to leave. She packed some belongings and left with the children, intending to go to a Women's Refuge, which she knew about, in Carlisle. She stopped at the Cairn Lodge Services in Douglas, Lanarkshire, where she spoke to the staff. As a result, the police were summoned and she was taken to Law Hospital.

(c) Corroboration etc.

[3] The two children (aged only 8 and 9) gave evidence. The older one spoke to the appellant returning from the pub and being awoken by a disturbance involving his parents later on.

[4] Two employees from Cairn Lodge Services spoke to the complainer being in a state of distress; crying and shaking and saying that she had been "beaten up" by the appellant. Both noticed injuries on her neck and face.

[5] The Accident and Emergency doctor at Law Hospital spoke to seeing the complainer, who was complaining of rape, at about 2.15 pm. She noted a large contusion on the complainer's forehead, which was tender. There was recent (within 24 hours) bruising on the nose, the left cheek and thigh. There was grazing on the left side of the face and neck, left chest and the back of both wrists. There was a soft tissue injury to the mouth.

[6] Dr Jill Murie, a general medical practitioner and police surgeon practising in Lanark, examined the complainer between 5 and 6 pm. She completed a pro forma examination form, which was produced at the trial. According to the report from the trial judge, she spoke to there being severe bruising to the forehead and face, including two black eyes. There was a bruise on the chin and scratches on the neck. There were numerous bruises on her body, some fresh but others two to three days old. There was fresh "fingertip" bruising on the inner aspect of the right upper arm and defensive injuries to the backs of both wrists. There was extensive bruising on the inner right thigh (shown in photographs also produced), a bruise on the right knee and "fingertip" bruising on the left calf. Dr Murie did not consider that these could have been caused accidentally or by self infliction. On examining the complainer's genital area, Dr Murie found congealed pubic hair and tenderness of the vaginal orifice and between the vagina and anus. There was considerable tenderness at the back of the anus, which, she testified, was unusual. Dr Murie said that she had not seen a parous female with such tenderness and that her findings were consistent with attempted anal penetration and non-consensual vaginal intercourse.

[7] During the course of the appeal, reference was made to the transcript of Dr Murie's testimony. She had said in examination-in-chief that the first and most obvious feature of her findings was severe bruising to the head and face. She described the bruising to the inner aspect of the right upper arm as "fresh fingertip bruising... characteristic of a restraint" (p 318). She described the wrist bruising in similar terms. The appellant did not dispute that he had restrained the complainer (infra). This, in due course, would be his explanation for these injuries. Dr Murie described fresh "fingertip" bruises on the inner right thigh, also caused either by prolonged or altered restraint. The appellant would have an explanation for these too (infra). Dr Murie spoke to "exquisitely" tender areas, which she found at the back of the anus. When it came to cross-examination on tenderness, Mr Brady's line was that doctors detected tenderness as a result of what their patients told them. He put it to Dr Murie, in that regard, that doctors relied on their patients being truthful. But Dr Murie denied this. She relied on experience. Mr Brady shied away from that line. He changed tack and put certain parts of a single page of the medical notes of the complainer's general medical practitioner (infra) to Dr Murie relative to vaginal discharge. This was, it seems, with a view to hinting to the jury that the redness of the vaginal area, which had been noticed by Dr Murie, might have been caused by some form of inflammation caused by the discharge.

[8] The police recovered a pair of ladies underpants, which were ripped in two pieces, from the house (Joint Minute para 3). They also found a container of Vaseline in the bedroom. Although not mentioned by the trial judge in his report, an anal swab taken from the complainer disclosed the presence of Vaseline (Joint Minute para 5).

(d) The Appellant's Account

[9] The appellant gave evidence to the effect that he had gone to the pub. On his return home, he had gone to bed. He had been woken by the complainer bearing bottles of Tia Maria and Coca Cola, with two glasses. After sundry communings, the complainer had initiated sexual activity and intercourse took place. At between 2 and 3 am, he had been woken again by the complainer, who was biting his thumb in a painful manner. The complainer assaulted him and he had to restrain her by lying on top of her. The children had come in and he had returned them to bed. He went back to bed and to sleep, matters having calmed down. He denied using the Vaseline, tearing the complainer's underwear or attempting to have anal intercourse with her. He maintained that he had noticed the bruising on her thigh on the Saturday, but could not offer an explanation for that on the complainer's forehead. Sundry character witnesses were led on the appellant's behalf.

(e) The Charge

[10] The judge's charge was relatively standard in content. The trial took place before the recent innovations into the definition of rape. The trial judge defined rape as:

"sexual intercourse of a woman by a male person, forcibly and against her will, her resistance having been overcome...If resistance is offered it must be shown that it was persisted in until overcome by force, or fear, or exhaustion, or a combination of these things".

On evidence of distress, he said (p 22):

"...if evidence is led of distress on the part of the complainer, but led from other witnesses, it is recognised that it does in fact provide independent evidence to corroborate the evidence of a complainer to the effect that she was not a consenting party to any sexual activity involved. Now, accordingly then, the distressed or shocked state of a complainer after an alleged assault is capable of corroborating her evidence that she was assaulted and was not a consenting party".

He went on to stress distress as being potentially corroborative of lack of consent.

(f) The Appeal

[11] The appellant was sentenced to four years imprisonment. He appealed against his conviction upon grounds quite different from the points raised in the reference. He was refused leave at first sift (10 March 2000) and at second sift (5 May 2000). The appellant has served his sentence.

The Reference

(a) General

[12] The appellant applied to the Scottish Criminal Cases Review Commission, who completed their reference to the Court in March 2003. The Commission noted that the appellant's basic position was that his wife had lied at the trial, being motivated by: a desire to secure the matrimonial property; her wish for custody of the children; and her affair with another man. The proposition seemed to be that the complainer had entirely fabricated the account of the rape, falsely created the evidence of distress, largely caused the physical injuries herself and planted the Vaseline and the torn underwear. The Commission rejected some of the appellant's more extreme and bizarre complaints. These included his contention that his children should not have been permitted to give their testimony by CCTV link, as distinct from appearing in court, despite their ages. There were also complaints about supposed false statements made by the complainer about the timing of the appellant's redundancy from British Telecom in 1994 and concerning the appellant being an alcoholic. It transpired that the complainer's evidence about his redundancy had been accurate and that she had not said that he was an alcoholic.

[13] The Commission looked into the allegation that the complainer had had an affair. The appellant's contention was that her mobile telephone records would demonstrate this. However, the defence had precognosced the alleged paramour and his wife. Their position was that it had been the appellant, who had been telephoning and making threatening and abusive remarks, and not the complainer. Not surprisingly, therefore, the defence had not used the telephone records in an effort to demonstrate the existence of an affair, for what relevance that might have had in any event.

[14] Next there was the appellant's contention that a taxi driver would have confirmed that he had arrived home at 10 pm. The defence precognition of the taxi driver indicated that the taxi driver would not have done so. Finally, on the rejected complaints, the appellant maintained that, prior to trial, the appellant had thought that Mr Belmonte was to have represented him personally, rather than instructing counsel. He claimed that he had only had one five minute consultation with counsel prior to trial. This proved to be untrue. He had two consultations and the file notes recorded them as lasting, on average, two hours each.

[15] From the above narrative and findings, it was presumably apparent to the Commission that the appellant was someone whose word might not always be regarded as entirely truthful or reliable.

(b) The Bank Pay-In Book

[16] The appellant alleged that the complainer had lied to the Court when she was asked about whether she had ever had an account with Barclays Bank. She had denied having such an account in her name, but did say that the appellant had such an account. The transcript of the trial, which the Commission obtained (but which was not produced to the court) confirmed that the complainer had said this. The appellant maintained to the Commission that this line of questioning had been relevant to whether the complainer had made up the allegations for a financial motive. The Commission were supplied with papers, which had been held by Mr Belmonte. These included, according to the Commission, a photocopy of the front page of a pay-in book for Barclays account no. 07307 20883863 in the name of Mrs [S]. In a letter to the appellant after the trial, Mr Belmonte advised the appellant that the original had been returned to him with counsel's papers.

[17] The Commission's assessment recognised that it was important to consider whether the existence of the pay-in book was significant. Their approach was to determine:

"whether counsel's failure to lead evidence of the pay-in book or to put it to the complainer in cross-examination constituted a failure to put the defence case fully before the court...".

The Commission reached the view that the existence of the book "undermined" the position of the complainer that she had never held such an account and that its production "might have affected her credibility and reliability in the eyes of the jury". Therefore, what the Commission characterised as a failure by counsel "constituted a failure to put the defence case fully before the court" (para 93). The failure to raise this failure by the appellant's legal team (presumably Mr Belmonte) as a ground of appeal compounded matters (para 99).

(c) Medical Opinion

[18] According to the Commission, the appellant complained that his legal advisers ought to have "obtained a separate opinion from an independent expert to verify the accuracy of Dr Murie's evidence". There was no typewritten report from Dr Murie; only the handwritten pro forma already referred to. That was normal for the area of Dr Murie's practice at the time. However, the defence had precognosced Dr Murie twice. From the first of these precognitions (neither was produced to the Court), the Commission extract the following:

"...the injuries to the perineum...were caused in my opinion outwith the range of normal consensual activity and indicative of forced penetration".

In the second, they select the following:

"As I have said there was deep bruising of the perineum, the area between the vagina and anus, which is indicative of forced penetration of the vagina and the anus. She complained of a sore anus. After normal sexual activity there is sometime redness in that area which is caused by friction but not such deep bruising. I completed a body map noting that her injuries (sic) and concluded that her injuries are consistent with her allegations".

The Commission did not assess the appellant's complaint from the standpoint of a defence lawyer. Rather they instructed an "opinion" from Dr David Cochran, who was then a Forensic Medical Examiner (formerly "police surgeon"). What Dr Cochran was asked for his opinion about is not stated either in the reference or in his report (his letter of instruction dated 18 July 2002 was not produced). He was supplied not only with material which one might expect a defence expert to have been provided with (e.g. the photographs and Dr Murie's pro forma), but also with transcripts of the evidence of the complainer, the appellant and Dr Murie. He was given a photocopy of the single page of the complainer's GP records, noted above as being used at the trial, covering the months August and October 1998.

[19] The substantive parts of Dr Cochran's report consist of a commentary on the testimony of Dr Murie. It commences by stating that

"There are significant, verging on irreconcilable, differences between the hand-written notes taken by Dr Murie...and the subsequent type written statement produced by Dr Murie and the oral evidence given in court".

It is not known what this type-written statement was and Dr Cochran does not mention it on the list of documents he said that he received. It may have been one of the defence precognitions, since there was no such statement produced by Dr Murie. Be that as it may, Dr Cochran goes on to quibble with Dr Murie's use of the adjective "exquisite", when applied to what he refers to as the complainer's vaginal tenderness. He states that there was no record of an injury, which might have explained such a degree of tenderness. He states that Dr Murie's testimony of an injury to "the perineal body is untenable in the absence of an obvious external injury". He says that there was "No physical sign...present in the perianal area to explain the tenderness detected". In relation to the extensive bruising which had undoubtedly been found on various parts of the complainer's head, limbs and body, Dr Cochran writes:

"This entire evidence is negated since it is clear that Dr Jill Murie was unaware of the fact that [S] had complained of 'spontaneous bruising' to her general practitioner on 10 August 1998".

Dr Cochran quibbles once more about Dr Murie's language, this time her description of "raccoon eyes" before expressing an opinion that:

"Dr Murie is not entitled to opine that intercourse had been non-consensual. There is no documented injury to either vagina or anus, the tenderness or exquisite tenderness present is clearly a subjective symptom conveyed by the patient to the doctor and is in the absence of documented injury unsubstantiated.

Causation of the bruises with the knowledge that [S] complained of spontaneous bruising to her General Practitioner is impossible to determine".

The Commission conclude:

"109. ...Dr Cochran's report clearly contradicts Dr Murie's evidence with regard to her interpretation of the injuries which she identified on the complainer. In particular Dr Cochran suggests that there were no objective signs of injury to the complainer's vaginal or anal area upon which to base an opinion that the intercourse was non-consensual. Furthermore, he states that the existence of an entry in the complainer's general medical notes suggesting that she had previously experienced spontaneous bruising, undermines any interpretation by Dr Murie of the bruising that she found on the complainer. It is noted that Dr Murie was not referred, by either the advocate depute or defence counsel, to the entry in the complainer's general medical notes which recorded this complaint of spontaneous bruising.

110. ...the Commission is persuaded that, if the applicant's legal advisers had sought an independent opinion in respect of the medical evidence, from either Dr Cochran or from another expert witness in this field, the defence could have presented a substantial challenge to Dr Murie's evidence".

The Commission state that they had regard to four cases: Anderson v HM Advocate (infra); Garrow v HM Advocate (infra); Hemphill v HM Advocate (infra); and E v HM Advocate (infra). The basis of the referral (para 122) is that the appellant:

"...may have suffered a miscarriage of justice as a consequence of the failure of his legal advisers properly to prepare and present his defence in accordance with his instructions in respect of three issues".

The three issues are: (1) the failure to use the bank book at the trial; (2) the failure to use that failure as a ground of appeal; and (3) the failure to obtain an independent medical report. Based on that, the Commission state that they believe that there may have been a miscarriage of justice and that it is in the interests of justice that the case be referred.

Responses from Counsel and Agents

[20] It is an interesting feature of the reference that the Commission report that they interviewed Mr Brady and Mr Belmonte, as well as Ms Hilary Jones, who was Mr Belmonte's colleague who attended the trial diet. This was presumably in connection with the failures which the Commission considered they, or one or other of them, had been responsible for. Nothing is said about the explanations they put forward on the matters ultimately referred by the Commission and there is no analysis of any comments, which they may have made, in the context of a defective representation appeal.

(a) Pay-In Book

[21] What is noted in connection with the pay-in book is as follows:

"88. Mr Belmonte...told the Commission that he had been aware of the existence of the pay-in book and its relevance to the applicant's defence. He advised also that while he had been involved in the preparation of the applicant's case for trial, he had not been present at the trial, but that Ms Jones had been present. Mr Belmonte expressed surprise that counsel had not lodged the pay-in book as a defence production or referred to it in the course of cross-examining the witness.

89. Mr Brady...told the Commission that he was aware that there may have been a pay in book suggesting that the complainer had a Barclays bank account in her own name. However, Mr Brady said that he did not believe he had actually ever seen the book in question, and was not certain that it actually existed".

[22] The Court requested responses (infra) from Mr Brady and Mr Belmonte. Mr Brady responded by Note dated 12 July 2003. In respect of the pay-in book he reports:

"...I have no specific recollection of seeing a bank account book from Barclay's. I do not, of course, dispute that it exists. However, I should be very surprised if it had been in my brief as appears to be the suggestion and, if it had been, that it should have remained there very long. It is my practice not to hold on to original documents, rather, to allow solicitors custody of these.

...the documentary productions were late in this case and it is not clear to me when it is that the applicant says he handed the passbook to his solicitors. It appears that Mr Belmonte was aware of the book and its relevance, yet it had not been lodged as a production. I fully accept that the decision rests with counsel as to whether or not items are lodged, but I have no recollection that any discussion as to its lodging took place. I do, however, have a note that at consultation the applicant's and complainer's financial circumstances were discussed. The applicant indicated that on the morning of the alleged rape, he had gone to the Clydesdale bank cash point and when he had tried to check the balance or draw money his card had been "swallowed" by the machine. He had also had a look in the Barclay's account and there was nothing in it. This was, I took it, because the complainer had removed the money. I assumed these were joint accounts. As I understood it, the applicant's position at consultation was that the complainer had made the false rape allegation so that inter alia she could make off with the parties' money. I cannot now recall whether there was evidence to substantiate that the two had had joint accounts or whether, and if so, when and by whom, the accounts had been emptied.

I do have a further separate note taken at the consultation to the effect that the complainer had two of her own accounts, namely one with the National Westminster and one with Barclay's. I must say that the relevance of the defence of her having accounts in her own name is not, even now, apparent to me. If I had been asked to consider whether the book should be lodged, I think it likely I would have counselled against, especially as the applicant might have been asked to explain how it was that he had possession of his wife's own account book (assuming that it had, indeed, come from him) when his line was that she made off with the money and, in his evidence generally, that his wife controlled the family finances and business affairs.

I cannot now say that I specifically remember deliberately being cautious about how far I pushed the line of questioning...but with hindsight, I can quite see that I might have thought that the production of the book, might have raised more questions than it answered, even if I had been aware that it was to hand.

As I find it difficult to see the relevance of the existence of the book to the defence, I find it difficult to see a reason for the complainer lying about its existence. Although it seems unlikely, I would have to have had in contemplation that her denials might have been merely erroneous rather than dishonest".

Mr Belmonte responded by letter of 20 November 2003 as follows:

"1 ...It is confirmed that the Appellant instructed us that his wife had opened a bank account with Barclay's Bank. Information to that effect was given to...[Mr] Brady...for his use in cross examining the complainer and was left in his hands to present appropriately".

(b) Medical Evidence

[23] In relation to the medical evidence, Mr Brady states:

"I have no recollection of noting that Mrs [S] had complained of 'spontaneous bruising' to her General Practitioner on 10 August 1998 and, I must say, that if I had noted it at the time I am not at all sure that the significance would have struck me given that the evidence appeared to be, from both sides, that there had been episodes of violence in the marriage (one is aware of examples in violent domestic situation lying to close friends, family and even doctors about how they come by injuries).

...I am not sure if Dr Cochran is saying that even without the results of the tests he is of the opinion that the bruising and injuries...could be spontaneous...If so, I must immediately concede that it did not occur to me that this could be so and, if it had, I think it highly likely I would, have requested a medical opinion on the matter

...the applicant, as I saw it, had a real problem with these [non vaginal] injuries coinciding with the very day on which the complainer decided to leave him. I am not sure that these difficulties would have been surmounted even if it were established that she was subject to spontaneous bruising. Such a finding might have raised further questions (e.g. was she able to predict such attacks so that she could choose that particular day to leave and "fabricate" evidence, namely the damaged pants found at the locus knowing that she would also have bruising?).

There was evidence...that there had been previous occasions when [the appellant's mother or father] had seen the complainer deliberately trying to injure herself (striking her head on the fridge) and a suggestion that she had deliberately caused her injuries was, therefore, before the jury, but the possibility of the injuries being spontaneous was not explored before the jury.

So far as Dr Cochran's opinion as to Dr Murie's evidence about the nature of the vaginal injuries is concerned, I put to her very firmly in cross-examination that her findings must depend on subjective evidence, namely that of the complainer herself. Indeed, I reminded the Jury of that in my address. ...Dr Murie was reluctant to accept this...and it was not until she was giving evidence...that it became apparent...that it was something upon which she would express a fairly fixed, possibly even trenchant, opinion. The extracts from her precognitions...did not alert me to the fact that she would be reluctant to accept in her evidence in court what seemed to me a matter of logic...rather than medical opinion namely, that her findings as to the pain and tenderness in the area depended on the veracity of what the complainer had told her.

...As I considered the medical evidence in advance of trial, the danger for the applicant seemed to me to lie more in the bruising and injuries to the other parts of the body..."

Mr Belmonte writes:

"b Doctor Jill Murie was precognosced by us prior to the instructions of [Mr] Brady...at consultation...consideration of all the Crown evidence was effected...We were not advised that a defence expert to counter Doctor Murie's evidence should be instructed and led".

The Grounds of Appeal and Procedure

[24] The referral is dated March 2003. Its first airing was at a Procedural Hearing on 14 May 2003, when grounds of appeal were ordered within six weeks and reports sought on the referral from the trial judge, counsel and agents. Grounds of Appeal were lodged on 14 July and remained essentially unchanged in the years which followed. These are:

"1. The evidence of the complainer was central to the Crown case.

a) ...Had the evidence of the pay-in book been presented it is likely to have had a material bearing on [the jury's assessment of the complainer's credibility and reliability]";

b) "Had [Dr Cochran] given evidence it is likely that his opinion would have had a material bearing on the jury's assessment of the complainer's account...

By reason of the failures referred to the appellant's defence was not properly presented and as a consequence he was denied a fair trial.

Separatim. The evidence referred to was not heard at the trial. Had it been heard it would have been likely to have had a material bearing on the jury's verdict.

Esto the failures referred to do not amount to defective representation there is a reasonable explanation for why the evidence was not heard.

2. The trial judge misdirected the jury on the approach which they should take on the evidence of distress...The directions were apt to suggest that one of the uses the jury could make of the evidence of distress was to corroborate the fact that the complainer had been assaulted.

Accordingly there has been a miscarriage of justice".

There was another Procedural Hearing on 14 November 2003, by which time, it would appear, no response from Mr Belmonte had been forthcoming to a letter sent to him on 21 May. It was anticipated too that counsel would have revised the grounds of appeal by the next Hearing, which was on 18 December. That Hearing was continued "with a view to the Court being advised as to the up to date position in regard to ground of appeal (b)"; revised grounds having been lodged at the Bar only on that date. On 13 February 2004, counsel advised yet another Procedural Hearing that the appeal was not ready to proceed as:

"the medical records of the complainer had not yet been retrieved. Further it was stated that Dr Cochrane would require to study said records and the crown would thereafter have to decide whether or not they wished their expert to also examine the records".

Entering its second year of procedure, a Hearing of 30 March 2004 was continued to 2 April and again until 30 April and then 11 June, with no reasons for these being minuted. On the last date, it was recorded that a further delay was required pending:

"(a) the consideration and prosecution of further steps in relation to the bank account operated by the complainer with Barclay's Bank...and (b) simultaneous steps to be taken by the Crown to secure the production of the medical records of the complainer as produced at the trial".

On 9 July 2004 the Crown were ordained to deliver to the defence copies of the complainer's bank records. But it was noted on that date that the appeal was ready to proceed. An unusual feature of that diet was that the counsel generally instructed in the case did not appear and a solicitor advocate represented the appellant. Several months later, on 8 December, the Court was to hear that the appeal was not ready to proceed, apparently because the medical records had not been recovered. Consideration was being given to the lodging of a petition for a Commission and Diligence to recover them (although the need to create a separate process was not explained). A month later on 18 January, 2005 the court was advised that such a petition was necessary (but obviously had not been presented), thus necessitating a further Hearing. On 23 March the Court was told that a petition would "shortly be lodged" and therefore assigned another Hearing. That took place on 2 August, when the court was told that the appeal was still not ready to proceed because the medical records had just been recovered and they now needed to be examined by an expert on the appellant's behalf. The reader of the minutes may be surprised that it had thus, apparently, taken the appellant eighteen months to recover a set of medical records. However, tragically, that is not the case.

[25] The appeal had, of course, passed its second anniversary with no substantive hearing fixed; indeed no obvious progress at all. On 6 October, it was minuted that "counsel is yet to confirm what has been done" with the medical records. Curiously, over six months later, on 26 April 2006 it was said that a petition to recover the medical records had been determined only the previous month and that further time was required to recover the records and for them to be examined by an expert. On 8 June 2006 it was recorded yet again that the case was not ready to proceed "due to the fact that the medical records of the complainer have still not been recovered because of a difficulty in relation to the interlocutor of the court granting authority for their recovery". On 4 August it was said that "whilst certain recoveries had been obtained it was now felt that it may be necessary to lodge a further petition to secure other recoveries". Over a month later, on 15 September, it was said that a further petition for recovery "is to be lodged". On 12 January 2007, it was still being said that the appeal was not ready to proceed "due to...a fresh Petition for Recovery of Documents" being lodged. This petition appears to have called on 30 January, but was continued until 6 February and then 15 February. Meantime, on 14 February the Court minute reads that the appeal was not ready because the petition for recovery of the medical records was still to be determined.

[26] The petition was determined on 15 February 2007, when an order for recovery of the complainer's GP medical records was made. As the appeal crawled past its third anniversary of Procedural Hearings, it was withdrawn from one on 5 April because "the medical records have not yet been sent to the Commissioner". It was withdrawn from another on 23 May because "the Commissioner has yet to complete her excerpting of the medical records". The next Hearing was scheduled for 12 July, but it was withdrawn from that because "the commissioner is still awaiting medical records". The case called at a Procedural Hearing on 23 August when counsel advised the court that the appellant's agents had not been able to effect service of the order for recovery because they did not know the name of the complainer's (presumably then current) GP. On 12 October, the case called again, when it was said that all relevant material had now been recovered and was going to be made available to Dr Cochran, who was described as the appellant's expert. The case was withdrawn from a further Hearing on 28 November because "the medical expert requires to consider the records". It was withdrawn from another on 29 January 2008 because "there had been problems between the Edinburgh agents and local agents with regard to the medical records and that an expert's report was to be lodged in respect of the issue of fresh evidence". The case called on 4 March 2008, when it was revealed that agents "had encountered problems in instructing Dr Cochrane. They had written twice, however, discovered only last week that he has moved practice. He was now in possession of the relevant records..."

[27] The case limped forward to its fourth anniversary of Procedural Hearings by calling on 1 April, when the court was advised that the report from Dr Cochran was "not yet available". Eventually, on 9 May 2008 it was announced that Dr Cochran's report was available. A diet for the substantive hearing was assigned, hence its calling before this court on 2 and 3 September 2008, almost ten years after the incident had occurred. The delays in the progress of the appeal might have shocked the court, had it not been for it having ploughed through a similar procedural history two weeks previously in the appeal of McCarthy v HM Advocate. It is thus with a degree of resignation that it bears noting that no medical records were used at the appeal hearing, other than the single page which had been used at the trial and had been sent to Dr Cochran by the Commission. The appeal, as it was eventually presented to the court in September 2008, could have been advanced in substantially similar terms, at least four years earlier. The intervening procedural steps appear to have been a waste of time and resources.

Further Enquiries

(a) Pay-In Book

[28] A photocopy of the front of a Barclays Bank pay-in book, and of one of the slips, was made available for the appeal hearing. This bears the name Mrs [S] and an address in Barnet, Hertfordshire. It has the account number 20883883 and a Barnet branch number 20-04-41. As a result of defence investigations, a further Barclays Bank pay-in book was found sometime in or before May 2004. This also bears the name "Mrs [SOS]" with the same Barnet address. This time it has the number 90883883 and a Whetstone & Finchley branch number 20-95-61. There is one pay-in recorded in the counterfoils, dated 31 October 1994. Enquiries of Barclays revealed, in June 2004, that the first account number was changed to the second number in February 1994, presumably because of a branch merger. Thereafter, the account was operated until 7 December 1994, when it was closed. The Crown having asked the complainer about this account, she maintains that she does not recall it but considers that it may have been operated by the appellant. At all events it had ceased to exist almost four years before the alleged rape.

(b) Medical

[29] Dr Cochran analysed some thirty five pages of the complainer's medical records. He noted an anal fissure in 1990 and a gynaecological assessment in 1987, when the complainer was complaining of pain during intercourse. He repeated the reference to "spontaneous bruising", which is contained in an entry on the single page of GP records for 10 August 1998. The records reveal that subsequent blood tests taken in that regard produced normal results. Dr Cochran reported in May 2008 that the 1990 anal fissure was "highly relevant", although he does not state why that should be so.

[30] Dr Murie was asked to respond to Dr Cochran's initial and supplementary reports. She maintained that her use of "exquisite" to describe the complainer's pain was accurate and her use of "raccoon" to describe the facial bruising was intended to be of assistance to a jury. She repeated that the "perineal area was red and acutely tender consistent with the effects of excessive pressure and stretching of the skin and subcutaneous tissue". She explained that she had not made any mention of an injury to the underlying perineal body. She noted the part of the GP entry of 10 August as "c/o (complaining of) postural hypotension and spont. bruising on legs". She explained that patients do not complain of either. Rather this is the GP's interpretation of the symptoms. Dr Murie rehearsed the full GP entry, which is:

"Stressed tired & can't take any more.

Felt suicidal last week & realised she need help.

Also c/o postural hypotension & spont. bruising on legs".

This is followed by an entry on 5 October 1998:

"Victim of repeated assaults by husband who has a serious alcohol problem. Assaults started 3/12 ago".

The entry goes on to detail a particular assault. As Dr Murie, not surprisingly, observes: "A prudent GP on reflection may have deduced from these presentations that they were related and indicative of physical abuse". Dr Murie states that the anal fissure in 1990 is irrelevant to the complainer's tenderness in 1998. She reports that, had the further information provided by the medical records been available to her at the time of the trial, her conclusions would have been the same. She describes Dr Cochran's contribution to the review of the evidence as "unhelpful".

The Trial Judge's Supplementary Report

[31] In a supplementary report, dated 5 August 2003, commenting upon the terms of the Reference, the trial judge elected to provide his own views upon the complainer. He states that he did not form a favourable impression of her as a witness. He continues:

"Having listened to her giving evidence over a considerable period of time, I formed the view that she was garrulous, somewhat self-indulgent and lacking common sense. However, I would readily agree that the experience of giving evidence was, from time to time, plainly distressing for her. At one point during the course of her evidence, when she was asked to identify certain items of clothing belong[ing] to herself, she collapsed in tears. It was then necessary for the proceedings to be adjourned for a period of time, to enable her to compose herself. However, as her evidence continued, in particular her cross-examination, she conveyed the impression to me that, in giving evidence about her husband and her life with him, she held a vicious, vindictive and sarcastic attitude".

In relation to bank accounts, the trial judge comments:

"...the complainer was in fact cross-examined very extensively relating to her financial affairs and, in particular, to bank accounts which may have been held by her. So extensive was this cross-examination and so far removed was its subject matter from what might be described as the circumstances of the alleged offences themselves, that, at one point, I asked the jury to withdraw, so that I could question counsel for the appellant as to the purpose of the very detailed questions he was asking about a range of matters, including those mentioned. I was informed that the questioning in issue was pertinent to an attack on the credibility of the complainer. Having been assured concerning these matters, I allowed the jury to return and the cross-examination continued".

The trial judge narrates another line of cross-examination put on the instructions of the appellant. This was that the rape allegation was a "monstrous lie", which had been put into the mind of the complainer by her sister, whose own husband had been prosecuted successfully for her rape. The trial judge allowed this line, but it transpired that the husband had actually been prosecuted for sexually abusing his daughter, and not raping his wife.

Nevertheless, the trial judge observes that, in his view:

"had the appellant been able to demonstrate by reference to bank documentation that the complainer had been untruthful in her evidence concerning a bank account, that would have been a very significant feature in the defence of the appellant".

On the medical issue, the trial judge recorded that Dr Murie's evidence constituted a powerful element in the Crown case. He continues:

"...according to the notes which I have, the cross-examination of Dr Murie was not extensive. It appeared to be based principally upon the contents of the complainer's medical records, held by her general practitioner...It is obvious that, if medical evidence from some other source had been available, which might have contradicted the evidence of Dr Murie, that would have been a very material feature of the appellant's defence".

Submissions

(a) Appellant

[32] The appellant submitted that the appellant had not received a fair trial, having regard to the significance of the pay-in book and Dr Cochran's evidence. He founded upon the trial judge's remarks in the supplementary report regarding that significance. In relation to the bank account, its importance was as a support to the appellant's position that the complainer had set up a separate bank account to enable her to leave the appellant. The production of the pay-in book would have resulted in the complainer being caught out in a lie. Preparation ought to have revealed that the complainer would not speak the truth about this. Even if counsel had not anticipated that the complainer would lie about the bank account, and hence had not lodged it in advance of the trial, he could have produced it in the course of cross-examination. Having asked about the account, counsel ought to have followed this line through.

[33] The appellant had an over-riding right to a fair trial and this meant his defence required to be "presented to the court" (Anderson v HM Advocate 1996 JC 29; SCCR 114, Lord Justice General (Hope) (delivering the Opinion of the Court which overruled McCarroll v HM Advocate 1949 JC 10) at p 33. The failure to cross-examine had the same effect as a ruling that evidence was inadmissible, as had happened in Moir v HM Advocate 2007 JC 131; SCCR 159 (sub nom. M(M) v HM Advocate (No 2)). A miscarriage of justice could not be excluded, albeit that the appellant was unable to assist in predicting what the complainer's response to the questioning might have been. It was sufficient that the appellant's defence had not been "properly" presented (Garrow v HM Advocate 2000 SCCR 772, Lord Justice General (Rodger) at para [14]; Hemphill v HM Advocate 2001 SCCR 361, Lord Cameron of Lochbroom (delivering the Opinion of the Court) at para [20]; cf AJE v HM Advocate 2002 JC 215, SCCR 341, Lord Justice-Clerk (Gill) at paras [8] and [18], Lord Hamilton at paras [3] and [15], Lord McCluskey at paras [19], [22] and [27]). The emphasis was on "proper" presentation, despite judicial doubt having been cast on the use of that wording in these cases (Jeffrey v HM Advocate 2002 SCCR 822, Lord Justice General (Cullen) at paras [23] - [27], Lord Hamilton at para [3], Lord Kingarth at paras [4] - [6]). The remarks in Grant v HM Advocate 2006 JC 205, SCCR 365 (Lord Justice-Clerk (Gill) at para [21]) were not in point as they concerned the adequacy of grounds of appeal (see also McBrearty v HM Advocate 2004 JC 122, SCCR 337, Lord Justice-Clerk (Gill) at paras [34] - [36]).

[34] In relation to the medical evidence, the review by Dr Cochran was an example of what might have been done by the defence. It was not possible to say when a report ought to have been instructed or by whom. Counsel had not anticipated the difficulties which had ensued as a result of Dr Murie's evidence. If the issue of spontaneous bruising had been raised, it would have been easier to persuade the jury that the account of rape was a "hoax". Any counsel faced with the precognitions of Dr Murie would have advised the instruction of a report to see if there was an alternative explanation for the injuries. That was "obviously" what needed to be done and it would have made all the difference. It was "obvious" too that, if Dr Cochran had been asked to report, he would have raised the matter of spontaneous bruising. He could also have dealt with the subjective nature of the tenderness. His report would have given counsel a platform upon which to challenge Dr Murie's testimony. Alternatively, Dr Cochran's evidence could be treated as "fresh".

[35] The final, and short, submission was that the trial judge had misdirected the jury on the effect of distress, in that it could not have corroborated what had happened as distinct from whether it had been with consent (Smith v Lees 1997 JC 73; SCCR 139). This was, of course, not a ground upon which the Commission had elected to refer the case.

(b) Respondent

[36] Under reference to Ditta v HM Advocate 2002 SCCR 891 (Lord Justice-Clerk (Gill) at paras [15] - [17], the Advocate Depute stressed the narrow limits set by Anderson v HM Advocate (supra), having regard to the need for both the independence of counsel and finality. The appellant's defence, which required to be presented, had been that this was a pre-planned conspiracy by a scheming complainer. The existence of the pay-in book, in that respect, was of no relevance to the live issues in the trial. Had the Commission obtained the evidence about the operation of the bank account, it could not have been said that a miscarriage of justice could have occurred because it was not used at the trial. Counsel had a wide discretion in determining his lines of cross-examination. The strictures in Grant v HM Advocate (supra) concerning the scope of appeals based upon defective representation ought to be applied by the Commission, when deciding whether a referral should be made.

[37] If it was being maintained that an expert report could have been obtained, it was still necessary for the appellant to demonstrate what that report would have shown (Lindsay v HM Advocate 2008 SCCR 391, Lord Wheatley delivering the Opinion of the Court at para [19]). Counsel had determined that the best way of dealing with Dr Murie's evidence of tenderness was by cross-examination on the basis that it was a subjective assessment. His main concern had been the injuries to the head, face and body rather than the vaginal or anal tenderness. It was reasonable not to instruct an expert report. Dr Cochran's offer of spontaneous bruising as an explanation was speculative in nature. He did not attempt to tie the actual injuries to that condition. Furthermore, spontaneous bruising did not explain the associated abrasions and scratches. It was difficult to see how, if the complainer had suffered from spontaneous bruising, the bruises all happened at once and were consistent with the defence case of fabrication.

[38] On the short second ground, the trial judge had made it plain that distress was to corroborate lack of consent.


Decision

(a) The Test

[39] The Full Bench decision in Anderson v HM Advocate (supra) established that, as part of the general right to a fair trial, an accused person has a right to have his defence presented to the court (Lord Justice General (Hope) at p 33). If it is not, he can appeal on the basis that a miscarriage of justice has occurred. But, because of the need to attain finality in any criminal process, an appellant will be unable to demonstrate that such a miscarriage has occurred, if his only complaint is that his defence could have been conducted differently. As it was sharply put in that case (p 36):

"There can be no miscarriage of justice if the advocate conducts the case within his instructions according to his own professional judgment as to what is proper for him to do in his client's best interests".

In that context counsel is not subject to direction from the client as to how the defence is to be presented (p 44). The manner of that presentation is a matter for counsel's professional judgment. It is only where the defence is not presented that a miscarriage of justice may be said to have occurred (p 44).

[40] After a short interval, there was a relatively rapid development in the scope of defective representation appeals in the years following Anderson v HM Advocate (supra). In particular there were the three cases of Garrow, Hemphill, and AJE v HM Advocate (supra) to which the Commission said they had regard in making the present reference. However, by the time of that reference, there had been two further important decisions of the court, both of which might have been considered directly relevant to the Commission's deliberations, yet which received no mention in the reference. The first of these is Jeffrey v HM Advocate (supra). It contained two analyses of these three cases, which merit rehearsal. First, the Lord Justice General (Cullen) said (para [26]):

"...in the three decisions it was held that that the system for the representation of the appellant had broken down to such an extent that his defence was 'not properly presented', I have some concern as to whether the use of the word 'properly' could be understood as a movement away from the principle which was set out, and for the reasons given, in the opinion of the court in Anderson. The use of such wording might be taken to imply that an appeal court would be not averse to entertaining criticisms of the way in which the appellant's defence had been presented. However, in none of these cases was the statement of principle in Anderson either doubted or expressly extended. Each of them can be explained - though with some difficulty in the case of [AJE] v HM Advocate - as cases in which there was in some fundamental respect a failure to put the appellant's defence before the court and hence he was denied a fair trial. Thus in Garrow v HM Advocate the consequences of the advice of counsel was that the appellant's evidence and the cross-examination of Crown witnesses lacked the support which should have been provided by a defence expert. In Hemphill v HM Advocate it was observed...that

'a substantial part of the Crown's case...was never made the subject of any investigation for the defence either by way of precognition of the Crown pathologists or by way of a report from an independent pathologist'.

In [AJE] v HM Advocate, while the members of the court were not in agreement on all points, they were all united in holding that there had been a miscarriage of justice in respect that the defence had not obtained support for the appellant by challenging the inference which was sought to be drawn from medical evidence relating to the complainers and the evaluation of information which they had given in the course of interviews".

Secondly, Lord Kingarth said (para [6]):

"...I am far from persuaded that the test described in Anderson v HM Advocate was not, in these [three] cases, widened. On the face of it, to say that a defence was not 'properly' presented (and to ask...if this could have had a material bearing on the determination of the issue by the jury) is...to apply a much broader test than that of the accused's defence not being presented. In the last of the three cases, for example, it is...reasonably plain that what the members of the court were, in part, concerned to assess were strategic and tactical decisions taken by senior counsel as to how the defence was to be presented".

[41] The second significant decision, contained in the same volume of reports, is Ditta v HM Advocate 2002 SCCR 890. It concerned whether the defence ought to have recovered medical records and used the entries, as they could have done, to show that the complainer's evidence-in-chief was, at least, inaccurate in a number of respects. The Lord Justice-Clerk (Gill) delivering the Opinion of the Court said (para [17]):

"...this ground of appeal is misconceived. The criticism made of the defence solicitor relates to a decision that lay well within the range of his professional discretion. This court will not entertain Anderson appeals where all that is suggested is that with the benefit of hindsight and further investigation it can be seen that the defence could have been stronger or that better judgments could have been made on strategic and tactical matters. In this case, all that can be said for the appellant is that the defence solicitor failed to produce an adminicle of evidence that could have provided a response to a line of evidence by the complainer that could not reasonably have been foreseen. That line of evidence was on a collateral issue and there were good reasons for not producing the records".

Thus, the Court had made it plain, even by the time of the reference, that the law remained as it was laid down in Anderson v HM Advocate (supra). In particular, for an appeal to succeed on this ground, an appellant had to demonstrate a miscarriage of justice by reason of his defence not being presented to the court.

[42] The reason for exploring these dicta is that they demonstrate that, in deciding to refer this case to the court, the Commission applied the wrong test. The test is not, as the Commission put it, whether there has been "a failure to put the defence fully before the court" (emphasis added), whatever that might be intended to mean. The lessons of experience dictate that there are many circumstances where it is prudent to put a defence, or a part of it, before a judge or jury in an economic manner if the prospects of an acquittal are to be enhanced. Mechanical or extensive cross-examination or the exploration of minutiae seldom achieves that goal.

[43] The approach adopted in the two cases of Jeffrey v HM Advocate (supra) and Ditta v HM Advocate (supra) has been adopted in several cases since the reference. In McBrearty v HM Advocate (supra), the criticism was of the defence decision not to obtain an expert report on a particular aspect of the case. The Lord Justice-Clerk (Gill) said (para [55]):

"These decisions were a matter for counsel's judgment. In every judgment of this kind, there may...be a range of decisions that it would be reasonable to make. Anderson appeals are not to be decided on the counsels of perfection to which hindsight lends itself (cf Ditta v HM Advocate)".

In Grant v HM Advocate (supra) the proposed criticism was, yet again, of the defence's failure to obtain an expert opinion on a particular point; although the defence had instructed an expert in the relevant field. Once more, and in trenchant terms, the Lord Justice-Clerk (Gill) set out the parameters of Anderson appeals. Once more, it is worth repeating, at some length, just what he said, given its direct application to a case such as this one:

"[21] ...In Anderson v HM Advocate and subsequent decisions this court has made it clear that to succeed in an appeal based on allegations of defective representation, the appellant must establish that the conduct of the defence resulted in a miscarriage of justice (p 44E-G). That can be said to have occurred only if the appellant's defence was not presented to the court, and he was therefore deprived of his right to a fair trial, because counsel either disregarded his instruction or conducted the defence in a way in which no competent counsel could reasonably have conducted it...

[22] An Anderson ground cannot rest upon a criticism of strategic and tactical decisions reasonably and responsibly made by trial counsel. These are matters within the scope of counsel's legitimate judgment...An Anderson appeal should not be granted leave if all that is alleged is that the defence would have had better prospects of success if the defending counsel had pursued a certain line of evidence or argument, or pursued a different strategy...

[23] Many of the increasing number of Anderson appeals are based on allegations of breach of instructions that rest only on the say-so of the appellant himself; or on criticisms of decisions that are prima facie within the legitimate scope of counsel's discretion; or on speculative allegations which the appellant's advisers hope that they may be able to substantiate at a later date. ....this court should not countenance the granting of leave to appeal in such cases.

[24] Those presenting such appeals should bear in mind the seriousness of what they allege. Criminal defence work, if carried out conscientiously, is demanding and stressful. All too often, convicted persons blame their counsel rather than themselves for their misfortune. An Anderson ground of appeal...constitutes a formal accusation against trial counsel that he failed to present a competent and responsible defence. An Anderson appeal puts trial counsel to the trouble of having to respond to the accusation, often when the ground of appeal gives less than fair notice of what the accusation is, or where counsel has limited recall of the case and limited access to the papers. These difficulties are especially acute where, as in this case, the Anderson allegations are tabled long after the trial. All such cases cause worry to counsel until the appeal is finally resolved".

(b) The Test Applied Generally

[44] The Anderson grounds of appeal in the present case come nowhere near satisfying the test set out in that seminal decision and the numerous cases thereafter. Indeed, following upon Grant v HM Advocate (supra), they would have been very fortunate to have passed the stage of the sift. If the general principle is that the appellant had the right to have his defence presented to the court, and in particular to have it put before the jury, it is clear that this right was both afforded to him and exercised by him. His defence was that his wife's allegation of rape was a complete fabrication; that is to say that she had made up a story of forcible intercourse and attempted anal intercourse. It was that the evidence of injury was created in part by the complainer inflicting the bruising on herself and, in part, by having already the bruising, for one reason or another, in advance of the incident. It was that there had been no underwear torn in the course of the incident and no use of Vaseline. That is the defence which was presented to the jury.

[45] The complainer was cross-examined at length by defence counsel. He succeeded in demonstrating, in the mind of the trial judge, that she held a "vicious, vindictive and sarcastic attitude". That must rank as a successful exercise in cross-examination, even if it is clear that the jury's view of the complainer must have been markedly different from that of the trial judge. In due course, counsel proceeded along the instructed line that the complainer was making up her account and her distress; thus no doubt emphasising that the account and the distress could be manufactured and the evidence about both aspects depended upon the conduct of the complainer herself. He attempted to use the same line with Dr Murie in relation to a description of tenderness in the region of the vagina and anus.

[46] In due course, the appellant gave evidence and denied the allegations. Had he been believed, or had his evidence raised a reasonable doubt in the minds of the jury, he would have been acquitted. He was not believed; and with good reason standing the evidence from the older child, the service station staff, the medical witnesses, the findings at the house by the police and the agreed scientific results from the anal swab.

(c) The Pay-in Book

[47] The first specific criticism levelled at the appellant's solicitor and counsel rests upon the existence of the bank pay-in book. It is said first that it ought to have been lodged. This has to be looked at initially from the perspective of pre-trial preparation. From a defence viewpoint, there is no reason for lodging something unless it has some kind of value. If that value is not obvious, it can be dangerous to lodge a production, which might subsequently prove to be of use to the Crown. It appears to have been the appellant's position that the existence of the bank account supported his position that the complainer was planning to leave him. The proposition was that she had opened this account for that purpose. In this regard, however, it is worth noting at the outset that there was no contemporaneous written material put before the Court confirming just what the appellant's pre-trial position was. Thus there were no precognitions of the appellant or notes from the two consultations stating, even in broad outline, what his position was; far less containing any mention of the bank pay-in book and its particular significance.

[48] It is regrettable that the Commission do not seem to have made any enquiries about the operation of the bank account, as distinct from proceeding upon the appellant's ipse dixit concerning its significance. As has been demonstrated, this account was closed almost four years in advance of the incident. It could have had no probative value at all, seen from the perspective of pre-trial preparation. Had the defence made inquires into the provenance of the pay-in book, all that would have occurred would have been that it would have been discarded by the defence as an item of any value. Its use to show the complainer's imminent desertion and duplicity would have been entirely counter productive. As counsel comments, what was the appellant doing with the complainer's bank account pay-in book? In this context, it is difficult to grasp just what Mr Belmonte perceived as being the value of the existence of the bank account, unless he was under the mistaken understanding that the account was operating at the time of the incident.

[49] Next, it is worth looking at the value of the pay-in book in the context of the trial. The suggestion is that it could have been used in cross-examination, once the complainer had denied the existence of the account. There is something distinctly peculiar about this complaint. How could the appellant have known that the complainer was going to deny the existence of the account; unless of course he knew that (as she now maintains) she did not know about it in the first place? It was the appellant who had possession of the pay-in book. Why would Mr Belmonte be surprised that counsel had not lodged the pay-in book as a production, even if that were counsel's function (which it is not), when any importance attached to it could only arise during cross examination?

[50] Once more, it bears repeating that there is no written material which demonstrates that counsel ever saw this book or a copy of it. Mr Belmonte wrote to the appellant to the effect that after the trial "the original had been returned to him with counsel's papers". But he is not reported to have said that to the Commission and he did not say that in response to the Court's request for his comments. Rather, he wrote in connection with the opening of the account that:

"Information to that effect was given to...[Mr] Brady...for his use in cross examining the complainer and was left in his hands to present appropriately".

Counsel provides a convincing explanation doubting that he ever had the principal book, because, as is indeed the case, it is rare, for a variety of practical reasons, for counsel to be given principal documents and even rarer (if they are prudent) for them to retain them in advance of or during the course of a trial. The Court is not satisfied that Mr Brady ever had the pay-in book or a copy of it for use in cross examination.

[51] Even if counsel did have the pay-in book or a copy of it, its value would have been minimal. Its relevance is again said to have been in the context of the complainer's departure. This was an entirely collateral line of questioning, which the trial judge was right to query and which he may well have been justified in excluding altogether. He did not and it is true that the complainer denied ever having a Barclays Bank account. Should counsel then have embarked upon a course of cross examination on whether she did or did not? It is highly doubtful. The case involved an allegation of a brutal assault and rape. The complainer was cross-examined at some length by counsel. He had used some lines which the appellant had given him, which had turned out to be inaccurate (eg the sister's husband's prosecution). Cross-examination of complainers in rape cases is a difficult task, especially when, as in the present case, the complainer is plainly distressed while giving evidence. It often has to be conducted, at least in part, with a degree of delicacy. Care has to be taken not to create the wrong impression in the minds of the jury by, for example, questioning a complainer at length and/or on apparently collateral or trivial matters. Whether a particular line should be used is very much a tactical decision for counsel to take during the trial. Although counsel may plan to use a particular line in advance of cross-examination, he can only sensibly take a decision on whether to follow that through once he is on his feet questioning the complainer and, at the same time, gauging her mood and reactions and, sometimes more important, those of the members of the jury.

[52] Cross-examination in the context of a jury trial is not a mechanical task involving the "putting" of the defence case "fully" to the complainer. Done well, it is a learned skill involving the taking of multiple immediate decisions in the face of a variety of different explanations and reactions occurring live in the courtroom. The results of the decisions taken may be irreversible. Counsel did not pursue the matter of the pay-in book here either because he did not have the ammunition (i.e. the document) to do so or, as he explains in his Note, because he considered that it might have raised more questions than it answered, given its peripheral relevance. In short, it was a tactical decision for him to take at the time. The decision which he did take, for whatever reason, was one which a skilled and competent counsel may well have taken in the circumstances. As outlined above, the cross examination was conducted in a skilful manner which at least persuaded the trial judge that the complainer was not an entirely straightforward person. In summary, the complaint in the ground does not come close to meeting the test desiderated in the cases and the appeal based on this ground must fail.

(d) The Medical Evidence

[53] Whether an expert report ought to be instructed in advance of a trial diet is again normally a question of strategy and tactics. It is not the case that, just because there is medical or scientific evidence of a potentially incriminating nature against an accused, the defence are thereby compelled to instruct a different medical or scientific expert on the off chance that there might be a way in which the evidence can be explained. Were that to be the case, there would be a substantial amount of unnecessary duplication of effort in the preparation of criminal trials. It is a question of fact and circumstance, and above all professional judgment, whether an expert report should be instructed and, in due course, whether the expert's testimony should be adduced. There are many instances where there are medical or scientific findings linking an accused to a scene or indicative of a particular type of behaviour, which are not contradicted by expert evidence led by the defence. That is not through negligence but because experience and/or common sense may dictate that it is inadvisable to seek to challenge the particular findings in themselves. Rather, the more advisable course of action may be to seek to explain the findings away in a manner consistent with the defence version of events. Alternatively, it may be prudent to say as little as possible about the findings and to attempt to deflect the jury's attention onto other aspects of the case.

[54] When a skilled and experienced counsel considers a case, he will decide the way in which to deal with any medical or scientific evidence. It may be that he will consider that the existence of certain findings (eg of bruising or scratches shown also in photographs) cannot be contradicted as fact, but may be circumvented as incriminating in a number of different ways. He may decide that the best course is to deal with the evidence simply by cross-examination. That is a decision he is entitled to take. If he can see no purpose in instructing an expert report, he is entitled not to advise instructing an unnecessary report as part of his general duties to the court and the general public.

[55] There may, of course, be circumstances where scientific or medical evidence is so damning that it does require to be countered (if it can be) by seeking the advice of an expert. This may be the case where that evidence is the principal incriminating source against the accused and it cannot be made consistent with the accused's explanation. But that was not the case here. The appellant's position was that the injuries were either pre-existing or that the appellant had caused them herself. That was the defence to be put to the jury. Counsel would therefore reason that the line to be taken was exactly that. He would proceed on the basis that he could cross-examine along the line that the injuries might have pre-dated the incident and/or that they were self inflicted. He would present the defence that the complainer's distress and complaints of pain were fabricated and that the witnesses speaking to both had been duped by her artistry. There was no reason, in the absence at least of hindsight, to hunt for some obscure medical reason surrounding a single entry in the records of the GP concerning "spont. bruising".

[56] It is, in any event, apparent that going down the spontaneous bruising route would, or at least could have been, as counterproductive as pursuing the bank account line. In the context of what had become a violent marriage, it is clear, as Dr Murie subsequently reports, that the bruising noted by the GP was unlikely to have been spontaneous, as distinct from being caused by the appellant on an earlier occasion. Raising spontaneous bruising as a cause of the injuries, which were observed on the complainer on the day of the incident, would have been almost risible in the context of this case. It would have been a wholly inadequate explanation for the existence of "fingertip" or other restraint type bruising in at least three different places; at least one of which the appellant actually accepted would have been caused by him at the relevant time. It could not have explained the grazing and scratching associated with the bruising. It would not have explained, as the Advocate Depute submitted, how the complainer was able to anticipate the onset of such bruising in advance of reporting the incident. Contrary to the submissions made, it is highly doubtful whether any counsel of ordinary competence would have attempted to develop such a line in the context of this case.

[57] A disappointing feature of the reference is also the content of the reports from Dr Cochran. This may not be Dr Cochran's fault, since the court was not told what he was asked to do. What is plain is that he was not placed in the position of an expert instructed by the defence. If the object of the Commission's medical inquiries was to see what would have happened if a decision to instruct an expert had made in advance of the trial, then their approach was seriously flawed. The only way of ascertaining what advice the defence at the trial would have had would have been to instruct an expert, sending him only the pre-trial materials and asking him for his views on that material in the context of the defence proffered by the client. That is not what occurred here. Dr Cochran was not only supplied with the pre-trial material but was also provided with a transcript of the evidence of the complainer and that of Dr Murie. For oft explored reasons, the practice of the courts is not to permit one expert to scrutinise the testimony of another expert before expressing his own view. Yet the Commission permitted exactly that sort of situation to occur and it perhaps not surprising, therefore, that Dr Cochran's report is in the form it is.

[58] What Dr Cochran produced was not a report of the type which might be expected of an expert instructed at the time. Thus it expresses no view at all on the critical feature of the medical evidence; namely whether the injuries recorded are consistent with rape, as it was then defined. Dr Cochran says nothing about whether he would reach the conclusion that the bruising was caused by a person restraining or striking the complainer. He expresses no view on the likelihood or otherwise of such injuries having being caused in the context of consensual intercourse, as the appellant maintained. But counsel could not have adduced Dr Cochran in evidence without knowing what his general views on these critical issues would be. Dr Cochran has produced a somewhat detailed commentary or appraisal on parts of Dr Murie's evidence and attempts to pick some holes in it after the event. This is a straightforward exercise, which might be done in many cases. However, without addressing the central issues based on the pre-trial information it is almost valueless in the context of an Anderson appeal. It is of a type which simply could not have existed in advance of a trial.

[59] Dr Cochran's criticism of Dr Murie's use of terminology in her evidence is trivial given that Dr Murie was trying to communicate with a jury. His reference to Dr Murie speaking to an injury to the "perineal body" is inaccurate. She spoke to no such injury, even if, on reading the defence precognitions, she might have done, if asked. More important, other than raising the red herring of the bruising being "spontaneous", Dr Cochran does not attempt to deal with the simple fact that this woman was covered in bruises on her head, limbs and body. He does not, therefore, address the central defence contention that these might have been self inflicted or pre-dated the incident. He does not attempt, perhaps wisely, to explain how a woman who was going to report a false rape and had purportedly planted evidence of torn pants and Vaseline, as well as inserting that Vaseline into her anus, could have predicted the future occurrence of "spontaneous bruising" of the degree found.

[60] Having considered the cross-examination of Dr Murie, it is clear that counsel approached his task in an entirely sensible and appropriate manner. Once more, due allowance has to be given to the risks of cross-examining an expert in the field; as Dr Murie clearly was. As in the case of complainers, but in a different way, cross-examination of experts is a learned skill and not a mechanical process of exploring all possible lines of inquiry, thus potentially damaging the defence case by shoring up the expert's opinion. Brevity is often the sensible course; especially when it is clear that the planned line is not going to be productive. That was the course taken by counsel in this case. On encountering a robust response from Dr Murie, counsel moved swiftly on, deflecting attention onto a less important aspect of the evidence and quickly ceasing. This approach cannot be faulted.

[61] The Court can but stress the need for those presenting defective representation appeals, and for the Commission, to consider carefully the remarks of the Lord Justice-Clerk (Gill) in Grant v HM Advocate (quoted supra) concerning the seriousness of what is alleged; it being a formal accusation against trial counsel that he failed to present a competent and responsible defence.

(e) Directions on Distress

[62] Finally, on the second ground of appeal, this is without merit and can be dealt with in short order. The trial judge's directions were entirely correct in explaining to the jury that distress was used to corroborate lack of consent. This was in terms of what was, at the time of the trial, the recent Full Bench decision in Smith v Lees (supra), of which the trial judge was doubtless aware. In any event, with the plethora of bruises which were found on this complainer, the existence of additional distress was of marginal significance in the proof against the appellant.

[63] There is no ground upon which it can be asserted with any force that a miscarriage of justice may have occurred in this case standing the compelling evidence against the appellant. The appeal must accordingly be refused.