Appeal Against Conviction And Sentence By Sean Barry Moynihan Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lady Paton,Lord Justice General |
| Neutral Citation | [2016] HCJAC 85 |
| Date | 05 October 2016 |
| Published date | 05 October 2016 |
| Court | High Court of Justiciary |
| Docket Number | HCA/2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 85
HCA/2015/3512/XC
Lord Justice General
Lady Paton
Lord Menzies
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
APPEAL AGAINST CONVICTION AND SENTENCE
by
SEAN BARRY MOYNIHAN
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Scullion QC; Gilfedder & McInnes (for McCusker, McElroy and Gallanagh, Johnstone)
Respondent: I McSporran AD; the Crown Agent
5 October 2016
Introduction
[1] On 29 June 2015, at the High Court in Glasgow, the appellant was found guilty of the rape of AP on a cycle track in Johnstone on 2 October 2014. He was made the subject of an Order for Lifelong Restriction with a punishment part of 9 years. In the course of the cross-examination of the complainer, statements which were inconsistent with her testimony were put to her. In his charge to the jury, the trial judge made no mention of these statements. The appeal against conviction raises the issue of whether it was incumbent upon the judge to advise the jury of the use to which such statements might be put.
The Evidence
[2] The complainer testified that she was 19. She was walking home on the cycle path between Johnstone and Linwood. At about 2.30pm the appellant, whom the complainer referred to as “Sean”, went past her as if he was out jogging. The complainer said that the appellant was a stranger to her. He had then stopped and put his hands on his knees as if resting. She walked past him. He disappeared for about two minutes before coming up behind her and holding a knife to her throat. He put his arm roughly around her shoulder and walked her some distance into the trees. He told her to take all her clothes off, which she did. He put his jumper down and told her to sit on it. He still had the knife. He threatened to stab her. She was crying by this time. He kissed her on the lips and penetrated her digitally. She had ended up on her hands and knees. He put his penis in her mouth. He had put on a Halo condom and then raped her.
[3] The complainer had been terrified. She had various scratches to her legs, hands, arms and lower back as a result of the incident. She had lost her headphones, which were recovered at the scene. Afterwards, the appellant had told the complainer to sit down for 10 minutes to let some people pass on the path. She had a cigarette in the trees. She had not smoked any cannabis, although a roach was found later on the path. At some point, the appellant had told her that his name was Sean, although he was known as Gavin. The appellant had asked her about her mother and step-father. She had told him her first name. She might have told him her surname.
[4] The appellant and the complainer had then walked back to the path. As she was looking in her hand bag, he was suddenly “gone”. The complainer met a male friend as she walked away. She told him what had happened. After contacting three other male friends, she phoned her step-father to pick her up as “something bad” had happened. He did that, along with the complainer’s mother, and phoned the police.
[5] The complainer gave a short statement to the police at her home and a fuller one the next day (3 October). The latter (Pro 26) is a 13 page hand-written prose narrative of events recorded by the police. It is signed by the complainer on each page. Certain parts of it were put to the complainer in cross-examination. The first extract contained a description of the complainer being pushed into the “bushes” and walking “a short bit in”. The appellant had let her go and was standing in front of her. The statement continues “It was then that I seen he had a knife”. The complainer agreed that this is not what she had said in her evidence because “everything’s mixed up in my head, and I’m nervous”. It was hard to remember whether she had told the police that the first time that she had seen the knife was when she was already in the bushes. When giving her statement, she was getting confused and mixed up. The line taken in cross was that the complainer had made up the bit about the knife to explain why she had not screamed or struggled when still on the path. It was also put that the complainer had referred to the appellant in her testimony as Sean because she had met him at Tesco in the weeks before the incident. The complainer denied meeting him at Tesco.
[6] The cross continued by asking the complainer about certain personal information about herself, which the appellant had been able to narrate when he was later interviewed by the police. One aspect of this was that she had told the appellant that she did not have a boyfriend because “all guys are psychos”. The complainer accepted that she could have said this, but could not remember. A second statement (Pro 28), dated 7 October, was put to the complainer. Again this is a handwritten prose narrative recorded by the police and signed on each page. On the third of the five pages, it states “I remember when I was sitting … after it happened, him asking me if I had a boyfriend – I told him ‘no’ as they’re all psychos”. The complainer accepted that this was “information” which she had provided to the police, but she could not remember it. She explained that “everything’s been a mess for me … I can’t think straight”. She said that she had been telling the police the truth and accepted that it appeared that this was a conversation that she had had with the appellant. The complainer admitted having Halo condoms in her house, but said that she would not have carried them about.
[7] The next matter related to the end of the incident. It was put to the complainer that the appellant had told her that he was going to get his car at Elderslie and that she had seen him walking off in that direction. She denied this. She maintained that she had no idea of where he had gone. The context of this line was the fact that the complainer had her phone with her and could have called the police immediately after the appellant had left. The complainer denied telling the friend, whom she had met shortly after the incident, where the appellant had gone. She said that she did not think that she had told him that she had seen the appellant walk off towards Elderslie. She could have said this, but could not remember. The contention was that the complainer did not want the appellant found by the police. She had not told the police that the appellant had handled her phone and that his fingerprints might be on it. She explained that “At that point, everything was all overwhelming and it was hard to, like, say everything”. She did not want to hand over her phone in case she did not get it back. She accepted that she did not tell the police that her assailant’s name was Sean until 7 October, when she said that the police mentioning a person called “Gavin” had triggered this memory.
[8] The appellant did not testify. He had been interviewed by the police. He maintained that he had previously met the complainer at Tesco and they had flirted with each other. Subsequently, he had just got lucky one day when he had met her again on the cycle path and she had initiated sexual contact. She had provided the Halo condom. After the incident, they had conversed and the complainer had smoked a joint.
[9] The police failed to recover the relevant images from Tesco’s CCTV system, despite having been asked to do so by the appellant’s law agents. There was evidence from a passer-by that he had noticed a male and a female in the bushes. He had not noticed anything untoward. Both had looked at him. The male friend, whom the complainer had met, adopted part of his statement to the police that the complainer had told him that her attacker had walked off towards Elderslie.
[10] The trial judge reports that the defence may have succeeded but for one mistake, indicating that the appellant’s account had been too clever. The appellant had told the police that he had kissed the complainer passionately and deeply. He thereby knew that she had a tongue pierced with a stud. The complainer had never had a tongue piercing, but a friend did have. The appellant had mixed up the photographs of the two girls on Facebook, where he had also acquired intimate knowledge of the complainer’s lifestyle and had thus been able to provide the police with details of it.
Speeches and Charge
[11] The advocate depute approached the issue of the complainer’s credibility and reliability partly by anticipating the defence speech. She dealt with the complainer’s use of the appellant’s first name when first describing the incident in court. She mentioned that the complainer had not initially told the police that the appellant had told her his name. This had been explicable because of the complainer’s state of mind. She had provided a detailed description of the appellant and later identified him on emulator sheets and a VIPER identification parade. Even if the appellant and the complainer had met at Tesco previously, would that have mattered? In relation to the roach, the advocate depute had asked the jury to apply the “so what” test.
[12] The advocate depute turned to the discrepancy between the complainer’s testimony and her statement on the point at which she had seen the knife. Again, the “so what” test ought to be applied. This was a matter of detail, “an understandable misrecollection in the circumstances of a terrifying ordeal at knifepoint some time ago”. In relation to the other matters about her phone and what she had told the friend about where the appellant had gone after the incident, they were all for the jury “to weigh up when you decide whether to accept her evidence or not”.
[13] The defence speech was a comprehensive one. It focused on the account given by the appellant at interview and its coincidence with other evidence in the case, notably that of the passer-by. The complainer’s action, in not immediately contacting the police or her parents, was referred to....
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