Lord Kingarth

Lady Paton

Lady Cosgrove

[2009] HCJAC 11


delivered by LORD KINGARTH










Appellant: Burns Q.C. et Brown; Paterson Bell, Edinburgh

Respondent: Mackay A.D.

5 February 2010

[1] On 10 August 1999 at the High Court at Glasgow the appellant was found guilty of the following charge:

"On 18 May 1998 at 22 Johnston Street, Whins of Milton, Stirling you did assault [SG], residing there, repeatedly seize hold of her and pull her onto a couch, repeatedly kiss her, handle her breasts and private parts, push her to the floor, remove her clothing, lie on top of her and did rape her".

[2] The complainer's evidence was that at the material time she, aged 23, lived at the address named in the charge with her baby boy then aged about 5 months. Her 16 year old brother also stayed at the same address. On 17 May 1998 she broke up with her then boyfriend, James Ford, who was a close friend of the appellant. Early on the morning of 18 May 1998 she telephoned the appellant to tell him about the break up. Shortly after that he came to her house. At about 10.00am she left the house for about 2 or 3 hours to go to Stirling to meet her mother. When she returned the appellant was still there. Early on in the afternoon her brother went upstairs to bed. The appellant then forced himself on her in the way set out in the charge. In a state of distress she went upstairs to see her brother. When he came down he took the appellant out of the house. The police were later contacted.

[3] The appellant's position in defence was that although there had been sexual contact between him and the complainer it had been at her instigation and with her consent. Although he admitted to sexual intercourse in an interview with police, he denied in evidence that sexual intercourse had taken place, claiming that he was under pressure during the interview.

[4] When the complainer completed her evidence in chief, counsel for the appellant sought leave of the court to allow certain questioning under and in terms of section 275(1)(c) of the Criminal Procedure (Scotland) Act 1995. At that time the relevant sections of the Act were in the following terms:

"274.-(1) In any trial of a person on any charge to which this section applies, subject to section 275 of this Act, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer-

(a) is not of good character in relation to sexual matters;



(c) has at any time engaged with any person in sexual behaviour not forming part of the subject matter of the charge.


275.-(1) Notwithstanding section 274 of this Act, in any trial of an accused on any charge to which that section applies, where the court is satisfied on an application by the accused-


(c) that it would be contrary to the interests of justice to exclude the questioning or evidence referred to in that subsection,

the court shall allow the questioning or, as the case may be, admit the evidence".

[5] The proposed questioning related essentially to five matters. In particular counsel sought to put to the complainer that:

(a) on the day of the incident she had later had sexual intercourse with James Ford and did not appear then to be traumatised.

(b) she engaged in consensual sexual activity with the appellant, including kissing and the sucking of her breasts before she left to go into Stirling.

(c) at some point in the past she had told a former boyfriend that her stepfather had abused her, but then retracted that claim in the course of an investigation into certain actions said to have been taken in reprisal by him.

(d) she had falsely claimed in February 1991 that a 15 year old male resident had had sexual intercourse with her while she was in the Brodie Youth Care Centre, Polmont and falsely claimed in May 1991 that another resident in the same centre had attempted to rape her.

(e) a witness Lorna McGovern had encountered the complainer in or about 1995 in a phone box in a distressed state having inflicted serious injuries on herself, complaining of abuse by her stepfather. The witness offered to get the complainer to hospital but the complainer would not go and, in refusing to go, claimed, falsely, that medical staff at the hospital had raped her.

[6] The trial judge allowed questioning in relation to (a) and (b) on the basis that the proposed questioning was directly relevant to the issues in the trial. He disallowed questioning in respect of (c), (d) and (e) on the basis that it could have no bearing on the credibility and reliability of the complainer in relation to the circumstances which were the subject of the trial and, in relation to (c) and (d), that the line of evidence was unsupported by any witnesses cited to give evidence for the defence in relation to the making (and, in the case of (c), the withdrawal) and the falsity of the allegations.

[7] As reported by the trial judge the complainer was thereafter cross-examined on behalf of the appellant, during the course of which the credibility and reliability of her account was challenged on a number of bases. It was put to her that in an earlier police statement she had accepted that she had initially allowed the appellant's advances. It was suggested that she had changed deliberately into revealing clothing, and that she had not shouted or struggled during the event. It was put to her that she had no bruising or other signs of physical injury, and that her clothing was not torn. It was suggested that there had been some delay in informing the police. It was put to her that she had had sexual intercourse with James Ford that night and was not upset (as to which evidence was given on behalf of the defence by James Ford himself).

[8] Notwithstanding this challenge it is plain that the jury, in returning the verdict of guilty must have accepted as credible and reliable the complainer's evidence in relation to the events in question.

[9] The appellant appealed against his conviction. In the course of that first appeal it was submitted that the trial judge had erred insofar as he refused the questioning in respect of matters (c), (d) and (e). On 26 January 2001 the appeal was refused (2001 SCCR 162).

[10] In December 2003 the Scottish Criminal Cases Review Commission ("the Commission") referred the appellant's case back to the court on the basis that it believed that there may have been a miscarriage of justice. In the report which accompanied the referral reference was made in particular to evidence not heard at the appellant's trial in relation to certain previous allegations made by the complainer involving third parties which, in the view of the Commission, "may have been false". The information in respect of three of these matters was said to be newly discovered information which those acting for the appellant could not reasonably have been expected to know about at the trial. Also referred to in the report were the claims said to have been made in 1991 when the complainer was in Brodie Youth Care Centre, Polmont. It was said that the appellant's agents at the trial could be criticised for failing to cite witnesses to support the making, and the falsity, of these claims. Reference was also made to the evidence of Lorna McGovern. It was said that "in the context of the other allegations made, this evidence may be significant". The Commission expressed the view that the questioning disallowed at the trial did not strictly fall within the prohibition in section 274 of the 1995 Act, it being proposed only to show that the allegations were false, not that the complainer had in fact engaged in any other sexual behaviour. The Commission, however, found no evidence to support the line of questioning which had been proposed in respect of matter (c).

[11] In the event, although leave to appeal was granted in respect of a number of grounds, including grounds based on the fresh evidence said to have been discovered by the Commission, the only ground advanced at the hearing of the appeal related to the trial judge's decision to refuse questioning in respect of the same matters as were referred to in the previous appeal. On 20 January 2005 this second appeal was refused (2005 HCJAC 7), the court again being satisfied that it could not be said that the trial judge had erred. In the course of the short ex tempore opinion, however, it was reported that the solicitor advocate then appearing on behalf of the appellant had "indicated that, while not abandoning the appeal, he was not inclined to advance the argument with any conviction. He said that he was adopting a 'neutral position'".

[12] On 12 October 2006 the appellant's case was referred back to the court by the Commission. In essence the Commission, which adhered to the views expressed in its earlier report, concluded that "the consequences of the approach taken by (the solicitor advocate) was that the applicant was denied the opportunity of having his appeal properly argued before the High Court and, as such, the applicant has suffered a miscarriage of justice".

[13] Before us, in a strong but careful presentation by senior counsel, two grounds of appeal were argued. We deal with each of these in turn.

[14] The first ground of appeal is that the trial judge erred in refusing trial counsel leave to question the complainer in respect of Lorna McGovern's evidence. The submission was that although the application was advanced, and apparently dealt with under and in terms of section 275 of the 1995 Act, the questioning was not, properly understood, excluded by section 274. More significantly, insofar as the trial judge found the proposed questioning to be irrelevant, he erred. The evidence related to a bizarre and unusual allegation. It would have been open to the jury to conclude that it was quite untrue, without the necessity of hearing any other evidence. Inadmissible questioning on a collateral issue, such as referred to in M(M) v HMA (No. 2) 2007 SCCR 159, could be distinguished. The proposed evidence was material evidence relating to the complainer's credibility and reliability. Certain of the fresh evidence allowed in Green v HMA 1983 SCCR 42 could be said to be similar. By contrast the circumstances of Cassels v HMA 2006 SCCR 327 could be distinguished. It was in the interests of justice that the proposed questioning be allowed. As a result the appellant could be said to have suffered a miscarriage of justice. Standing the previous decisions of the court this ground of appeal should, if necessary, be referred to a bench of 5 judges.

[15] On behalf of the Crown the short submission was that it could not be said that the trial judge had erred.

[16] The first question which arises is whether it can be said that the trial judge applied the wrong test by dealing with the application, as he was invited to do under section 275 of the 1995 Act. As to that, it seems clear that the line of questioning proposed was not designed to elicit evidence that the complainer was of bad character in relation to sexual matters or had at any time engaged in sexual behaviour not forming part of the subject matter of the charge (the suggestion being that her claim was entirely false), and thus that if any question of admissibility arose it would have been at common law and not under section 274. At common law it has long been understood that a trial judge may, subject always to consideration of the interests of justice in the particular case, rule evidence to be inadmissible which relates to any collateral matter which could be said to have only an indirect bearing on the issues in question and which could take up court time and risk distracting the jury. And, as has recently been stressed, the relevant sections in the 1995 Act (both before and after amendment) are designed not to replace the common law but to provide for further potential restriction (see, in particular, M(M) v HMA (No. 2) and, by way of illustration, Ronald v HMA (No. 1) 2007 SCCR 451.) It may be noted in passing that there is no mention in the Commission's reports of the relevant common law, although that may be because both reports predated the decision in M(M) v HMA (No.2). Against that background, although matters may not have been clearly articulated at the time, it is clear to this court from the various reports of the trial judge that the principal reason for his refusal of the proposed questioning was indeed the application of the common law, in that he regarded the proposed questioning as bearing on a collateral matter which was irrelevant in the sense that it did not have, as he saw it, any direct bearing on the credibility and reliability of the complainer in relation to the particular circumstances of the charge. Moreover he did not consider that it could be said to be contrary to the interests of justice to disallow it. We are not persuaded that it could be said that, in applying that test, he erred, and senior counsel did not, it seemed to us, strongly suggest otherwise.

[17] The real question is whether, even if the trial judge could not be said to have applied the wrong test, he could nevertheless be said to have reached the wrong conclusion. This court has twice already decided, in effect, that he did not, and, having carefully considered the matter again, we see no reason to differ from that conclusion. The proposed evidence related to a single comment made three years before, at a time when the appellant was, it appears, in a state of acute emotional and psychological distress. If made, it could certainly be described as bizarre and unusual (although it may be noted that in a police statement taken from the witness in 1999, which is now produced, the witness, it seems, claimed to have seen the complainer with a razor blade actually cutting her wrists and to have heard her complaining about the actions of her boyfriend (not her stepfather), and it is apparent from the Commission's first report that although a statement was taken from another witness, Michelle McCormack, who confirmed that she was with Lorna McGovern at the time, this witness could not remember anything being said about the doctors or rape). But the claim, and the circumstances in which it was made, bore no obvious relationship to the detailed allegations reported and persisted in by the complainer in relation to the subject matter of the charge. Further, if the context in which the remark was made was to be properly understood (and, in our view, fairness to the complainer would have required this) some evidence at least would have to have been given in relation to the whole circumstances of the complainer's apparent distress, which had at its root alleged previous sexual abuse by her stepfather. This plainly could have distracted the jury from the task in hand. Although reference was made to Green v HMA, the combination of a number of strands of fresh evidence in that case was very different - including evidence that the complainer suffered from a psychiatric disturbance which caused her to fantasise and have delusions, and evidence that she had told someone that she had not been raped by the appellants. The circumstances of the present case are, we think, closer to those considered in Cassels v HMA, where an earlier "spontaneous, impetuous outburst" by the complainer was considered, albeit in the context of section 275.

[18] In these circumstances this ground of appeal falls to be rejected.

[19] The second ground of appeal relates to certain fresh evidence which, it was submitted, is of such significance that the verdict reached in ignorance of it could be regarded as a miscarriage of justice. Two different strands of evidence were referred to. The most significant, it was said, appeared in a police statement taken from Francis Ford, on 23 April 1999. Francis Ford is the father of James Ford, who gave evidence in the trial. In the statement (recovered on behalf of the appellant a short time before the hearing of the appeal) the witness is said to have said to DC David Smith that he remembered an incident about a fortnight prior to the events of 18 May 1998. He spoke of seeing the complainer apparently drunk after a noisy shouting match with his son, and hearing, when the witness's wife went into the room, the complainer shouting that "She'd steal the baby or rape her. I asked her what she was talking about and she shouted that she'd got all her hair cut off because everyone wants to rape her". At the trial Francis Ford was on the list of defence witnesses but was not called to give evidence. Senior counsel explained that those representing the appellant at that time had a precognition from the witness in which he claimed to have heard the complainer shout to him that "he would end up raping her or the weans or something like that" but there was no reference to her hair being cut off etc. In addition reference was made to evidence relating to an allegation made against a certain Henry Bryce on 14 January 1991, on which date the complainer disclosed to DC James Ferguson that she had been "touched". When she was later interviewed she refused to speak about the matter. This was one of the new matters discussed by the Commission in their first report. In it it is explained that the Commission traced Henry Bryce, and he denied knowing the complainer or her family. Senior counsel accepted that the absence of this evidence on its own could not be said to have led to a miscarriage of justice, but it fell to be considered along with the other new evidence.

[20] On behalf of the Crown the position adopted was that, even if the new information could properly be regarded as new evidence, it was not accepted that a reasonable explanation existed for its absence (save in relation to the Henry Bryce allegation) or that it was capable of being regarded as credible and reliable. If necessary these matters would require to be tested in an evidential hearing. The apparent differences between the police statement of Francis Ford and his earlier precognition were noted. In any event the so-called new evidence would not have been admissible or material. Reference was made to Megrahi v HMA 2002 SCCR 509, at page 584.

[21] In considering this ground of appeal it has to be said at the outset that the evidential position relating to the two claimed new pieces of information is not, as senior counsel readily accepted, satisfactory. In the ordinary case this court would expect affidavits in respect of fresh evidence to be carefully prepared, so that it can be satisfied, in the first instance, that the evidence exists (and of its detail and potential significance), and secondly to enable at least a preliminary view to be taken as to whether it could have been treated by a jury as credible and reliable. In the present case, although one source of new evidence is said to be Francis Ford, no affidavit from him is before the court (and it appears that he has not yet been precognosed). All the court has is a document bearing to be a police statement taken in 1999, which at best suggests that the witness may now have evidence to give along certain lines (although differing it would seem, in respects which could be regarded as material, from an earlier precognition). Further there is no affidavit from Henry Bryce before the Court. We were informed that the appellant's agents do not know his address and, somewhat surprisingly, that the Commission was not prepared to disclose it to them. Further the Commission's first report does not disclose that any approach has been made to the officer who is said to have heard the allegation. Accordingly nothing is known of the circumstances in which it was (if it was) made. In these circumstances senior counsel's position was that, if necessary, the appellant should be afforded more time to obtain appropriate affidavits and, if necessary, an evidential hearing should to be held.

[22] Given the protracted history of this matter we are prepared to proceed for the time being on the assumption that the appellant does have evidence from Francis Ford along the lines of his police statement and that he will be in a position to produce evidence of the allegation relating to Henry Bryce and of its falsity. We also assume at this stage that there exists a reasonable explanation for the absence of this evidence and that it is capable of being regarded as credible and reliable. The critical question remains, however, whether it can be regarded as material.

[23] For reasons similar to those relating to the first ground of appeal, we are not persuaded that either piece of evidence is likely to have been admissible, or even if it was, that it could be said to have been material (applying the test summarised in Megrahi v HMA). The Francis Ford "evidence" is of a single drunken outburst, not persisted in and, on the face of it, not intended to be taken literally. On one view it is unhelpful to the defence. On any view it was made in very different circumstances. If led it would have been likely to require some investigation of the reasons for the complainer's apparent animus against her former boyfriend which formed the background to the remarks. It is, we consider, not without significance that despite the appellant's representatives at trial having information from Francis Ford relating to the same incident, and which included a similar (although not identical) alleged claim by the complainer, they did not seek to pursue that line at all. The Henry Bryce allegation is wholly unspecific, apparently of a very different kind, and made at a time when the complainer was very young and long before the relevant events. It would, it seems, have required investigation of whether, in all the circumstances, it was true or not.

[24] In these circumstances this ground of appeal also falls to be rejected.

[25] We would only add that although in the course of his argument senior counsel invited the court to consider the evidence relating to the second ground of appeal at the same time as considering the evidence which is the subject of the first ground (and vice versa), it appears to us that these grounds of appeal (the first an attack on the trial judge's decision on admissibility made on the basis of the information he then had, the second a claim as to the existence of significant fresh evidence) give rise to separate and distinct questions, and require to be considered, at least in the first instance, separately.

[26] In all the circumstances the appeal is refused.