Kenneth Collins V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Philip,Lord Eassie,Lord Drummond Young |
| Neutral Citation | [2013] HCJAC 167 |
| Date | 19 December 2013 |
| Published date | 20 May 2014 |
| Year | 2013 |
| Court | High Court of Justiciary |
| Docket Number | XC532/13 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Eassie Lord Drummond Young Lord Philip | [2013] HCJAC 167 XC532/13 OPINION OF THE COURT delivered by LORD EASSIE in APPEAL UNDER SECTION 65(8) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by KENNETH COLLINS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________ |
Appellant: C Mitchell; Keegan Smith, Livingston
Respondent: P Kearney Solicitor Advocate AD; Crown Agent
19 December 2013
[1] This is a note of appeal brought by Kenneth Collins under section 65(8) of the Criminal Procedure (Scotland) Act 1995 against a decision of the sheriff at Livingston dated 30 August 2013 granting two applications made under section 65(5) of the Act to extend retrospectively the periods of 11 and 12 months, referred to in section 65(1) of the Act, in relation to two petitions on which the appellant appeared in 2008 and 2010.
[2] The details and history of the two petitions are as follows. The appellant appeared on the first petition (LI08002634) on 16 May 2008. That petition contained a charge of rape of the complainer WC alleged to have been committed on 15 May 2008.
[3] On 23 May 2008 the complainer wrote a letter to the procurator fiscal seeking to have the charge dropped. She claimed to have been under the influence of drugs and alcohol when she made the allegation and that she "really wanted to hurt him [the appellant] back". On 4 September 2008 she provided a statement to the police to the effect that she had fabricated the allegation of rape as an act of revenge against the appellant. On 24 October 2008 she provided a further statement in which she maintained that the incident in question did not happen. On 3 November 2008 Crown counsel instructed that there should be no proceedings and the petition was allowed to fall.
[4] The appellant appeared on the second petition (LI10003052) on 29 June 2010 on a charge of assaulting the same complainer, then named WAH, to her severe injury and permanent impairment on 28 June 2010. The appellant was committed for further examination and remanded in custody. The court was told by the Crown that the petition was based on a statement provided to the police by the complainer on 28 June 2010 at St John's Hospital, Livingston. On 30 June 2010 she gave a further statement to the police detailing other assaults alleged to have been committed by the appellant on her in the course of which she was noted as having said:
"About two years ago I reported that Kenny had raped me but I got the case dropped. The reason was I got back with him and was also worried that he would do worse things to me. I know it's stupid but I kept going back to him no matter what Kenny did to me....
...I was happy that Kenny was being alright with me so didn't want to make a complaint and face Kenny then givin' me a kicking in...
....This is not the first time Kenny has beaten me up but this time I will not drop the charge against him, it has gone too far."
On 6 July 2010 she gave a further statement in which she was noted as having said:
"Kenny kept going on to me how he was going to get 8 years for the rape and that how he didn't really rape me, just beat me up and then slept with me. Eventually I said I would get the charge dropped. Kenny even wrote down what I needed to say in my statement but I don't have that"
[5] On the same date, 6 July 2010, at Livingston Sheriff Court, the accused was fully committed and remanded in custody, bail having been refused.
[6] On 30 July 2010 the complainer gave another statement to the police in which she was noted as having said:
"Over the last couple of weeks I have really thought about it and I have, it didn't come to me lightly. But what happened to me, I didn't report it at the time, I should have but I didn't. I feel that it should just be left now. I just dinnae see the point of bringing these things up because it would just be a revenge thing. Kenny would never let go. I would pay for that and I dinnae want to die. I genuinely believe he is capable of that."
[7] Following on his full committal on the second petition the appellant was indicted with the single charge of having assaulted the complainer on 28 June 2010. A first diet and continued first diet took place on 27 September and 6 October 2010 and on both occasions the appellant was remanded in custody. A trial diet was fixed for 11 October 2010. The complainer having at that stage gone missing, on 6 October 2010 a warrant for her arrest was sought and granted. On 22 October 2010 the trial diet was adjourned on Crown motion due to lack of court time. The appellant was granted bail on special conditions prohibiting contact with the complainer. A fresh first diet followed, but on 6 December 2010 the diet was deserted pro loco et tempore on the ground that the complainer had not been traced.
[8] There matters rested until, approximately one year later, the complainer was traced and, on 6 January 2012, gave a further lengthy statement to the police which, by reason of time constraints, was broken off and thereafter resumed on 9 January 2012. In that extended interview with police officers WAH gave a lengthy history of her life and her relations with, among others, the appellant. About the same time she informed the police that the accused was selling drugs and investigations resulted in his being convicted of drug offences and sentenced to three years' imprisonment.
[9] In that extended statement WAH made allegations that the appellant had committed a further rape and several serious assaults against her. Asked whether she had ever tried to leave the appellant WAH replied that she had done so "a few times" and then is noted as having said:
"Usually after two or three weeks he would come looking for me. He always knew where I was. I didnae have many places to go. Then it would be 'I love you' everything would be alright. If I didnae go back he would make my life a misery. He would slash my tyres, manipulate my friends, my family, and make my life a misery...It got to the stage, it got that bad that it was easier to go back. ...Through the years he messed my head that much...He made my life a living hell. If I had a job he would do my tyres, set my car on fire. He dobbed me into the dole. He would go out of his way to spoil everything, so that I had to meet him. It's hard to explain..."
"I ended up going back to him, retracting my statement I made myself out to be a liar. He went to the polis station and the pf and gave another statement. Kenny managed to talk to me and made me believe we'd be alright. That he loved me again, he knew he would get put away for a long time, so I made it look as if I had made it up out of spite to get him off with it."
Asked specifically whether she had retracted her original statement on 4 September 2008 as a result of force or threats from the appellant, she said, "No I done it to save him from getting the jail because I loved him".
She went on:
"That's it really until the final beating.
That was last year or the year before when he put me in the hospital.
The police came to that one and I gave them a statement...after that one I decided I wasn't lying again like the first one. I knew if I didn't get served the citation then I wasn't breaking the law.
I refused to lie for him again, so I told him that. So the only thing I could think of was to do a runner. I left my house so they couldn't serve me with a citation for the case. I lost my house and everything in it because I couldn't go back.
I even went back to him again after that."
Her account of her life history apparently led to another complainer, FM, being interviewed.
[10] Approximately 18 months later, on 10 June 2013, the appellant appeared in Livingston Sheriff Court on a petition containing six charges. In four of the charges, a charge of rape, a charge of assault to the danger of life, and two charges of assault to injury, the complainer was WAH. In the remaining two charges, one of rape and one of assault to injury, the complainer was FM. The appellant was committed for further examination and remanded in custody. The sheriff was informed that the appellant was to be indicted on these charges in the High Court of Justiciary in the week commencing 2 September 2013, and that the Crown wished to add the charges contained in the petitions of 2008 and 2010 to that indictment. It was for that reason the extensions were sought.
[11] After reading the police notes of statements by the complainer the sheriff formed the view that although the reasons for WAH having withdrawn her allegation of rape and having gone into hiding were complex a fear of the accused was a major factor which underlay the decision that she took. He took the view that the absence of action by the Crown to resuscitate the 2008 rape charge and the assault charge of 2010 were adequately explained since in the police statement in July 2010 the complainer seemed to say that she wished to leave these matters in the past, and since she thereafter disappeared in the autumn of that year. In these circumstances he found that there was no fault on the part of the Crown and that accordingly the...
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