Aje v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 06 February 2002 |
| Neutral Citation | 2002 SCCR 341 |
| Date | 06 February 2002 |
| Docket Number | No 15 |
| Court | High Court of Justiciary |
L J-C Gill, Lord Hamilton and Lord McCluskey
Justiciary—Procedure—Conduct of defence case—Failure to advance accused's instructed defence in advance of preparation for trial—Defence not pursuing lines proposed by accused—Whether accused denied a fair trial
Justiciary—Appeal—Verdict—Case relying on Moorov doctrine—Whether any objective evidence to support one charge—Whether verdict was one that no reasonable jury could return—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 106(3)(b)
Justiciary—Conviction overturned—Motion by Crown for fresh prosecution—Matters affecting grant—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 118(1)(c)
The Criminal Procedure (Scotland) Act 1995 provides at sec 106(3)(b) that “By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice bases on… (b) the jury's having returned a verdict which no reasonable jury, properly directed, could have returned.”
The appellant was indicted on two charges of rape on his two young daughters, L and A. Charge one related to rapes of L on various occasions over a period of 23 months, commencing on her third birthday and ending near her fifth birthday. Charge two related to rape of A, on one occasion during a period of eight months, commencing about two months before A's fourth birthday and ending about six months thereafter. The two complainers gave evidence. Their mother also gave evidence. Her character was not attacked, and it was not suggested that she had inspired the allegations. Further prosecution evidence was led of behavioural difficulties of the complainers, and of the complainers' prior statements on the matter, including interviews with police and a social worker. The social worker gave evidence, without objection, that in her opinion a small child could give reliable evidence of sexual abuse despite previous denials and inconsistencies in prior statements. The Crown led medical evidence relation to L which included findings which might be suggestive of blunt force penetrative trauma, possibly by penile penetration. The medical evidence led relating to A disclosed no genital abnormality of any kind, although it was stated that this neither confirmed nor refuted the allegations. The evidence of the Crown medical witnesses was not challenged. The appellant gave evidence denying any sexual interference with either child on any occasion, and the thrust of the defence case was that the crucial evidence of the complainers should be rejected. After trial, the appellant was convicted unanimously of both charges, and sentenced to seven years' imprisonment. The appellant appealed against conviction. There were three grounds of appeal. The first was that his defence was not presented adequately at trial, and the second that the verdict was one that no reasonable jury, properly directed could have returned. The third ground concerned fresh evidence.
The appellant argued that he and members of his family had provided to his legal representatives before trial material bearing on the medical evidence with the Crown intended to lead at trial; on the interviewing of children as witnesses to sexual abuse; and on the manipulation of young children resulting in their giving false, exaggerated or misleading evidence in proceedings concerning their sexual abuse. Such material had been ample to warrant investigating a line of defence. He provided fresh information which illustrated how significant this line of defence would have been. A defence medical report had been obtained prior to trial, which raised the possibility that certain findings in L's medical report might be a normal variant, rather than scar tissue suggestive of penetration; which noted that the findings on A's medical examination were not consistent with the history which she gave; and which raised a number of other potentially important matters for further consideration and enquiry. No further investigation was carried out by the defence team, and the defence expert was not called as a witness. As he denied any sexual interference with the complainers, the two possibilities were that someone else had abused the children, or that they had not been sexually abused at all; accordingly it was essential that their credibility and reliability be attacked. It was accordingly necessary to conduct a thorough examination into the results of the medical examination of L and their interpretation, and to test the reliability of A's evidence of penetration. It was also necessary to conduct an appropriate investigation to discover the extent to which the children might have been manipulated so as to give false information and evidence about the alleged rapes by the appellant. This included evidence to be adduced regarding the character of the complainers' mother. Further, evidence should have been led from expert psychologists to explain how children of the relevant ages could be manipulated so as to give false evidence of sexual abuse by their father and to interpret the results of interviews. This had not been done. the appellant had wrongly been told that the evidence of a child psychologist would not be allowed in the case. The Crown argued that the conduct of the defence at trial simply raised matters of professional judgment as to tactics and presentation, rather than a failure to present the defence instructed by the appellant.
Held (1) that an accused person is not only entitled to the presentation of his defence at his trial, but also to the due preparation of that defence in advance of trial, and that there may be circumstances in which the court could hold that the conduct of the defence at the trial was such as to deny the accused a fair trial (pp 219H, 226I); and that in deciding whether the conduct of the defence was such as to deny the accused a fair trial, the court may have to consider the conduct of the defence at trial in order to assess the consequences of a decision which was apparently contrary to instructions (p 220A–C); (2) that during the preparations for trial senior counsel decided that certain relevant and significant lines of defence urged on him by the appellant should not be pursued. As a consequence, he perilled the whole defence on the strategy of bringing out contradictions and inconsistencies in the evidence and prior statements of the complainers (pp 220C, 230G); and in the course of trial the defence made a number of professional judgments at trial which fell within the category of a failure to put forward the defence which the appellant had instructed, and numerous weaknesses in the Crown case were not brought out thoroughly or were passed over altogether (p 220F); (3) that the appellant denied throughout any sexual interference with either child. He urged the defence team to investigate various lines which would provide a substantial basis to meet the Crown case in a way consistent with his innocence (p 246F–I); (4) (diss Lord Hamilton) that in the circumstances of the case, however the defence was conducted, there was no escape from having to challenge the evidence of the complainers on the grounds of incredibility and unreliability, and challenging the evidence of the complainers as being deliberately false. The would involve arguing that they had been manipulated by their mother, necessitating a general attack on her character. The appellant was entitled to have his defence presented in that way, even if experienced counsel thought it unwise to do so (pp 244F–245G); (5) that the appellant was also entitled to present evidence to show that the manipulation of young children in cases of sexual abuse was a recognised phenomenon, and to adduce evidence to show that the possibility of such manipulation was a live one in the present case. It would also have been appropriate to adduce evidence, which would have been available to the defence, to show that the interviewing techniques were flawed (pp 229H–230G, 248H–249C); (6) that the contrast between what the complainers alleged and the findings on medical examination would have been even more important. The possibility that the medical signs relating to L could be caused other than by sexual penetration, should have been fully explored, but was not. An expert medical basis for showing the improbability of A's assertion that she had been sexually penetrated was not explored. Had the defence used the material which the appellant had shown to be available, the body of evidence before the jury would have been materially different (pp 228F–G, 245G–249I); (7) that a substantial line of defence for which there was supporting evidence and a real prospect of obtaining further evidence to support it was not presented to the jury. Although it could not be said that had the defence case been properly presented then the jury would have reached a different verdict, the failure was so fundamental and affected the conduct of the appellant's defence to such an extent that he did not have a fair trial and there was a miscarriage of justice and the appeal should be allowed on the grounds of defective representation (pp 230H–I, 245G–249I); (8) (diss Lord Hamilton) that sec 106(3)(b) had to be interpreted on the basis that it effected a change in the law. The new provision set an objective test. It acknowledged that even in a well run legal system unreasonable verdicts could happen. Although the Appeal Court was not entitled to quash the verdict of the jury because it would have reached a different decision on the basis of the record of the evidence, the issue of reasonable doubt could not now be regarded as being at all times within the exclusive preserve of the jury. The court had to decide whether it could say that, on any view, a verdict of guilty beyond reasonable doubt was one that no jury could reasonably have returned (pp 223C–D, 249I–250D); (9) that in this case conviction of the appellant relied upon the Moorov...
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