Michael Martin Hodgson V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Bonomy,Lord Hardie |
| Neutral Citation | [2012] HCJAC 55 |
| Docket Number | XC188/09 |
| Date | 03 May 2012 |
| Court | High Court of Justiciary |
| Published date | 03 May 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lady Paton Lord Hardie Lord Bonomy | [2012] HCJAC 55 Appeal No: XC188/09 OPINION OF THE COURT delivered by LORD BONOMY in APPEAL AGAINST CONVICTION by MICHAEL MARTIN HODGSON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead et Mason; Bruce & Co, Arbroath
Respondent: Fairley AD et Barron; Crown Agent
3 May 2012
Background
[1] The appellant was convicted on 17 March 2009, after trial at the High Court in Edinburgh, of the following charge:
"On an occasion between 20 August 2007 and 6 September 2007, both dates inclusive, at 15/14 Bingham Medway, Edinburgh you did assault M, and did attempt to induce her to consume alcohol, seize her by the body, pull her towards you, pick her up and drag her to a bedroom, place her face down on a bed and remove her clothing, tie her arms and feet to said bed, and you did rape her."
[2] Following his detention the appellant was interviewed without having access to the advice of a solicitor, and evidence was led about the terms of that interview at his trial. The Crown initially maintained that the appellant had waived his right of access to a lawyer, but before us it was conceded by the Crown, under reference to Cadder v HM Advocate [2010] UKSC 43, 2011 SC (UKSC)13, 2010 SCCR 951, 2010 SLT 1125, that evidence of the interview should not have been led.
[3] At the appellant's trial the Crown relied upon his admission of having intercourse with the complainer to provide corroboration that he was the person who had assaulted and raped her. However, the police interview was not the only source of acknowledgement by the appellant that he had had intercourse with the complainer. Prior to the police interview, at the point of detention, he made certain remarks relating to his relationship with the complainer. In light of the terms of the interview the Crown did not rely on these remarks at trial.
[4] The first questions before us are whether, in light of Cadder v HM Advocate it is now appropriate to take that evidence into account and whether in fact the remarks amount to an acknowledgement of penetration of the complainer. In the event that the answer to both is in the affirmative, the next question for our attention is whether, absent the evidence of the police interview, there was a real possibility of a different verdict (Cadder v HM Advocate (supra) at paragraph 64). There is a third and separate issue relating to the admission of the evidence of a chartered clinical psychologist, Dr Katharine Russell, as to the complainer's lack of understanding of sexual intercourse and related matters.
The Facts
[5] The complainer was befriended at work by 'JC'. Because the complainer was having difficulty picking up how to do things correctly, 'JC' tried to help her out. The complainer visited her at her home. There she encountered the appellant who was one of 'JC's' neighbours. The appellant and the complainer met on subsequent occasions. On one occasion they went to Portobello Beach for a barbeque; on another occasion they went to the cinema together, after which the complainer went to the appellant's flat from where he walked her home.
[6] They met again on 27 August 2007, a holiday Monday, when she took a DVD player and some DVDs to his flat. There they watched a film on the DVD player. What happened thereafter is described by the trial judge in his report as follows:
"When she was putting away her DVD he dragged her through to the bedroom. She tried to pull away but he was too strong for her. He laid her face down on the bed. He took her top, trousers and pants off. He tied her feet and hands to the bed. She kept saying 'No, no no' and tried to get away. Her feet were tied to one side of the bed and her hands to the head of the bed with dressing gown cords. He said 'You'll not get out of this one.' She did not know what was going to happen to her and she tried to undo the ties to get away. He had his penis out and put beer on it. She shouted on 'J'. He put his penis in what she described as 'my back end'. She did not know what was happening to her. At one point he put something in her mouth. (The words 'place a gag in her mouth' in the charge were deleted by the jury in their verdict). There was blood on the sheet and she thought she was bleeding but did not know where from. She did not think that what had happened to her was all that serious so she just put on her clothes and went home after he had untied her. He had the cheek to walk her home and ask if she was all right.
The complainer did not know what had happened to her or how to describe what had happened. She did not tell anyone, even when she was asked by her father and grandmother if anything had been done to her. On one occasion after the incident she was walked home from work by the appellant and refused a lift from her father in his taxi. She first disclosed what had happened to her when she was asked by 'JC', who then contacted the police on 6 September 2007. When she was examined by a forensic medical examiner a full length tear at the four o'clock position was found in her hymen."
[7] The appellant was detained by the police on 7 September 2007, and in a lengthy police interview lasting 1 hour 53 minutes he admitted tying the complainer's hands and one foot to the bed and having sexual intercourse with her, but maintained that she consented and indeed had egged him on by saying "Go for it" and also "Keep going". He stated that when he inserted his penis into her vagina she screamed and he withdrew and untied her. He gave evidence at the trial maintaining his defence of consent.
[8] The appellant was detained at his home address on 7 September 2007. After being cautioned and told why he was being detained he said:
"I'm flabbergasted. I've only slept with two people since I've been here."
He shortly thereafter, once he had checked some items of property in his bedroom, added:
"I've slept with Kirsty, but she only came on Monday, and another girl who lives over there, she's a care assistant. I can't remember her name. She's only 17 1/2 years old."
The reference to "another girl" was clearly a reference to the complainer.
Admissibility of Remarks made upon Detention
[9] Mr Shead, counsel for the appellant, acknowledged that, if these utterances were truly voluntary, they were not struck at by the decision in Cadder v HM Advocate or any other related case. The question, therefore, was whether, applying the general test of fairness, the policy of the court should be to admit such statements, bearing in mind what was the state of the law at the time the statements were made. He suggested that the court might approach the matter by asking this question - is such a statement truly voluntary when the person making it does not know of his entitlement to legal advice? Mr Shead also invited us to construe the appellant's reference to sleeping with the complainer as not amounting to an acknowledgement of penetration, but in doing so recognised that the court had already, in GM v HM Advocate [2011] HCJAC112 at paragraph 21, interpreted that expression as being open to that construction.
[10] In response the Advocate depute submitted that, unless there could be shown to be some nexus between an utterance or remark and police questioning in relation to the offence, Cadder v HM Advocate was not engaged to the extent of rendering the remark inadmissible. He relied in particular on the judgment of Lord Hope at paragraph 48 and Lord Rodger at paragraph 70 and their emphasis on material derived from interrogation. The same emphasis can be seen in paragraph 13 of the opinion of Lord Justice Clerk in Mullen v HM Advocate [2011] HCJAC55, 2011 SCCR 438, and paragraph 80 of the judgment of Lord Brown in Ambrose v Harris [2011] UKSC 43, 2011 SCCR 651.
[11] Having reviewed again the evidence relating to the circumstances in which the remark about sleeping with the complainer was made, we consider that it was a genuinely voluntary statement made following caution to the effect that the appellant was not obliged to say anything other than to provide certain personal details, and including the warning that anything he did say might be used as evidence. His remarks were made instantaneously and, in our opinion, spontaneously and truly voluntarily. No question was posed to which the remarks could be seen to be a response. Some reference was made in the discussion before us to the possibility of the terms of the caution being revised to include reference to the right to legal advice. However any such revisal would relate to legal advice before being interviewed. It is difficult to see what difference such an additional element in the caution would have made in the circumstances of this case. We can see no reason why evidence of the remarks should not have been admitted.
[12] Since the remarks were properly admitted, they were a feature of the trial and were available to the jury for their consideration. The fact that, when the Advocate depute came to address the jury, he chose to rely on what the appellant had said at the interview rather than these remarks does not detract in any way from their availability as evidence to be taken into account in determining whether there was a sufficiently corroborated case to answer at the close of the Crown case. Mr Shead suggested that in two respects there was insufficient evidence, viz penetration of the complainer's vagina and identification of the appellant as the assailant. In our opinion there was sufficient...
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