Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Carloway,Lord Philip,Lady Paton |
| Judgment Date | 06 July 2005 |
| Neutral Citation | [2010] HCJAC 44 |
| Date | 06 May 2010 |
| Published date | 06 May 2010 |
| Court | High Court of Justiciary |
| Docket Number | XC326/07 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lady Paton Lord Carloway Lord Philip | [2010] HCJAC 44 Appeal No: XC326/07 OPINION OF THE COURT delivered by LORD CARLOWAY in the reference from the Scottish Criminal Cases Review Commission GRAHAM GORDON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: party
Respondent: Clancy QC, AD; the Crown Agent
6 May 2010
1. General
[1] The appellant was indicted on three charges. The first was that:
"(1) on [Sunday] 12 August 2001 at [address], Bridge of Don, Aberdeen, you did assault [SM]... seize her, pull her to the floor, restrain her there, remove her clothing, bite her on the breast, lie of top of her, force her legs apart and did rape her, all to her injury".
The second charge was one of indecent assault upon another woman in a car park off Union Street about a week later. The third was that:
(3) on [Friday] 4 October 2001 at Justice Mill Lane, Aberdeen, you did assault Constable [EG]... and did repeatedly place your hand on her knee and seize her buttock".
The case went to trial before the High Court in Aberdeen on 30 August 2002. During the course of the trial, the Advocate Depute withdrew the second charge. The appellant pled guilty to the third charge. On 5 September, the jury returned a majority verdict of guilty on the first charge. After obtaining reports, the trial judge sentenced the appellant to five years imprisonment on the rape charge and admonished him for the indecent assault. The appellant has long since served his sentence.
[2] The appellant applied for leave to appeal on three grounds, viz.: (1) defective representation; (2) oppression, the jury having been charged on the basis of the post incident restatement of the law of rape in Lord Advocate's Reference No 1 of 2000 2001 JC 143; and (3) prejudicial pre-trial publicity. Each ground was considered at first sift on 20 June 2003. Leave to appeal was refused; the first sift judge giving detailed reasons for his decision. However, at second sift on 23 December, leave to appeal was granted, but only on the defective representation ground. Notwithstanding that decision, on 30 April 2004 at a Procedural Hearing, the Court allowed the appellant to "lodge" two "additional" grounds of appeal. The new grounds related to the adequacy of corroboration and the directions given on mens rea. The new grounds were not made the subject of any sift (cf Act of Adjournal (Criminal Procedure Rules) 1996 rule 15.15(4)) and proceeded without leave. The permission to "lodge" "additional" grounds was interpreted as the grant of leave for these grounds to be argued.
[3] On 29 September 2004, the appeal proceeded. Only the "additional" grounds were argued. The defective representation ground was abandoned on the day of the hearing. Thus, the only grounds which were argued were those for which no leave had been granted. The appeal was refused by a Court presided over by the Lord Justice General (Cullen), Lord Penrose and Lord Hamilton (2004 SCCR 641).
[4] The appellant applied to the Scottish Criminal Cases Review Commission on a variety of grounds, including most of those which had already been rejected at first and second sift or by the Court at the appeal hearing. In March 2007, the SCCRC decided to refer the case as a potential miscarriage of justice primarily on the bases that: (1) the police investigation had been defective in a number of respects; (2) there had been a failure by the Crown to disclose a statement of the complainer; and (3) the SCCRC had uncovered what they regarded as "fresh" evidence.
[5] The elaborate and lengthy procedure which followed the reference is detailed in the Opinion of Lord Carloway dated 24 April 2009 (2009 SCCR 570). As at that date, the appellant was still insisting upon the grounds of appeal which had been lodged following the reference two years earlier and had reflected, in large part, the bases for that reference. The Court appointed a hearing on those grounds, notwithstanding certain vague suggestions that further grounds of appeal might be lodged. No such grounds were lodged and the appeal was heard over three days from 26 January 2010. At that hearing, the appellant appeared on his own behalf, having parted company (not for the first time) from his legal representatives.
2. The Evidence
[6] It is worth noticing three matters in limine. First, the evidence led at the trial was both sufficient in law and compelling in fact, notwithstanding the existence of several legitimate criticisms which could have been made, and in most instances were made, of the Crown case. Secondly, it cannot be disputed that the Grampian Police investigation of the case was defective. In due course, after the conclusion of the trial, that investigation was the subject of adverse comment following an independent review by the Northern Constabulary. Thirdly, the appellant did not give evidence at the trial. The decision that he should not give evidence is not the subject of any criticism. However, it may be a factor to be borne in mind at the appellate stage in determining whether a miscarriage of justice has occurred on the basis of particular grounds of appeal.
(1) THE COMPLAINER
[7] The complainer's evidence was adduced by the Advocate Depute in remarkably short compass. She was 43 years old at the material time, separated, with two children aged 17 and 12. She said that she had been "in a relationship" at the time of the incident (although not living with the person concerned) and was still in that relationship at the time of the trial. She was taking an anti-depressant, prescribed by her doctor, which, she accepted, ought not to have been combined with alcohol. In cross-examination, the appellant's counsel was able to put to the complainer that the particular drug was Lustral.
[8] The complainer had started the night at about 7 pm at her female friend DS's house, where she had one drink of Morgan's (Spiced Rum) and Coke, before heading to the centre of Aberdeen at about 9 pm and meeting other female friends. They had one drink in each of three pubs visited before going on to Franklyn's, a nightclub situated in Justice Mill Lane, at about 11 pm. The Lane is just off the west end of Union Street in central Aberdeen and would be a busy place during the club's operating hours.
[9] The complainer accepted that, over the course of the evening, she drank about eight measures of Morgan's, albeit interspersed with glasses of water. After 10 or 20 minutes in Franklyn's, the complainer was approached by the appellant and asked for a dance. She did dance with the appellant, who then bought her a drink. According to the complainer, she was only in the appellant's company for 10 or 15 minutes before he asked her "to go up the road... to go home... he wanted to take me home". Whose home the appellant was planning to take the complainer to remains slightly ambiguous in the evidence, but the complainer appeared to be referring to her own home, which was in Mastrick, on the western fringes of the city. This passage of evidence ends with the Advocate Depute asking the complainer what then happened and she replied: "Well that's just where I can't really remember".
[10] The complainer recalled leaving the Club, thinking that she was going home by taxi. But she got into the appellant's car. He drove her to a location which she did not recognise; at least not immediately. She opened the car door and fell out. On falling, the complainer recalled the appellant saying "That's the way I like my women". He helped the complainer to her feet and assisted her up the common stair to his flat. The complainer went into the livingroom. The appellant gave her a tissue for her injured knee. It was the complainer's position that they then sat on a settee.
[11] The complainer tried to telephone for a taxi using her mobile phone, but the appellant would not, or at least did not, tell her his name or address. Initially, the complainer said that she had asked the taxi firm to come and collect her anyway, even though she could give no address. However, the appellant's counsel was able to put to her that she had telephoned "Mair's Taxis" and she accepted that this was so. She had told Mair's that she was at the Bridge of Don barracks. Thus, as she also accepted, she knew roughly where she was, namely in a new housing development near what used to be the Gordon Barracks at Bridge of Don, on the north eastern edge of the city.
[12] According to the complainer, it was after her attempt to obtain a taxi that she was attacked by the appellant, who seized her by the legs, pulled her down onto the floor, pulled up her top and bit her on the breast. The appellant broke the decorative chain (label no 1) of her trousers, undid the trousers and pulled them and her pants down. He forced her legs apart, lay on top of her and raped her. The complainer described the appellant as being "very forceful". She had tried unsuccessfully to push him off. She denied suggestions from the appellant's counsel that all the activity had happened on the settee, with the appellant kneeling on the ground. There had been no foreplay in the form of kissing. The complainer refuted the suggestion that "oral sex" had occurred; although it is not clear from the question asked whether this was a reference to oral sex performed on the complainer or by the complainer.
[13] The complainer maintained that she had told the appellant to "get off", to "stop" and to "leave her alone". But she said to the appellant's counsel that she could not shout out as she "didn't feel as though [she] had a voice to shout it out". Counsel put it to her that, if she had really been attacked in the manner described, she would have been "screaming the house down". The appellant accepted that, but repeated that she did not have the voice to do so.
[14] The episode ended when the complainer told the appellant, whilst intercourse was still going on,...
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