Raymond Willian Jude V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Hardie,Lord Bonomy,Lady Paton |
| Judgment Date | 11 May 2011 |
| Neutral Citation | [2012] HCJAC 65 |
| Date | 18 May 2012 |
| Published date | 18 May 2012 |
| Court | High Court of Justiciary |
| Docket Number | XC562/08 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lady Paton Lord Hardie Lord Bonomy | [2012] HCJAC 65 Appeal No: XC562/08 OPINION OF THE COURT delivered by LORD HARDIE in APPEAL AGAINST CONVICTION AND SENTENCE by RAYMOND WILLIAM JUDE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead, Mason; Drummond Miller, Edinburgh
Respondent: Fairley AD; Crown Agent
18 May 2012
Introduction
[1] On 27 May 2008 the appellant appeared for trial at Aberdeen High Court in respect of an indictment containing seven charges, six of which alleged serious sexual assaults upon the same complainer, X, and the other charge alleged a breach of the peace involving secreting a mobile phone in X's bathroom with the intention of taking indecent photographs of her. At the conclusion of the evidence the Advocate depute withdrew the libel in respect of each of charges 1, 2, 4 and 5 and the appellant was acquitted of these charges. The remaining charges which were left for consideration of the jury were in the following terms:
"(3) On various occasions between 27 May 2002 and 30 November 2007, both dates inclusive, [at two specified addresses] and elsewhere in Edinburgh and East Lothian you did assault X and did send her inappropriate and indecent text messages, make inappropriate and indecent comments to her, repeatedly place your hand on her buttocks, lie beside her in bed, repeatedly attempt to remove her clothing, put your arms round her, kiss her on the face and neck, repeatedly handle her chest, seize her by the throat, repeatedly remove her trousers and underwear, repeatedly rub your private member in her presence, repeatedly rub your private member against her body and repeatedly handle her private parts;
(6) On 19 November 2007, at an unclassified road near Fa'side Castle, Tranent, East Lothian, and elsewhere in East Lothian, within your motor vehicle registered number G67 PES, you did assault X and did follow her, threaten her with violence, demand that she get into your car, demand that she remove her jacket, repeatedly rub your private member in her presence, demand that she get into the back seat of said motor vehicle, demand that she kiss you on the mouth, attempt to kiss her on the mouth, strike her head on a window, repeatedly strike her on the head, repeatedly seize her by the throat and compress same, lie on top of her, pull up her top, handle her chest, kiss her chest, repeatedly threaten to kill her, pull down her trousers, rip off her underwear, unbutton your trousers and expose your private member, demand that she handle your private member, repeatedly drag her along the ground, force her to bend over the bonnet of said motor vehicle, handle her private parts, insert your fingers into her private parts, handle your private member in her presence, demand that she place your private member in her mouth, force her to handle your private member, repeatedly threaten to rape her, demand that she place your private member in her private parts, seize her by the hair and repeatedly force your private member into her mouth to the emission of semen and all this you did with intent to rape her;
and
(7) On 30 November 2007 at Lewisfield Park, Newbigging, Musselburgh, East Lothian, you did assault X and did place your hand on her buttocks, place your arms around her, demand that she kiss you, seize her by the body, push her against a row of trees and a wall, repeatedly threaten to kill her, handle her chest underneath her clothing, lift up her dress and place your hands under her tights, handle her private parts over her underwear, repeatedly threaten to rape her, force her to rub your private member, pull down your trousers and underwear, push her down on the ground, demand that she placed (sic) your private member in her mouth, rub your private member against her face, seize her by the hair and force your private member into her mouth and demand that she place your private member into her private parts, all with intent to rape her."
On 5 June 2008 the jury unanimously convicted the appellant of each of charges 3, 6 and 7. On 20 August 2008 the appellant was sentenced to an extended sentence of 11 years in cumulo comprising a custodial term of 8 years and an extension period of 3 years.
Procedural history of the appeal
[2] On 28 August 2008 the appellant lodged a notice of intention to appeal. On 17 February 2009 the appeal was deemed to have been abandoned because a note of appeal had not been lodged within the relevant time (Criminal Procedure (Scotland) Act 1995 ["the Act"] section 110(1)). On 5 October 2010 the appellant lodged an application for extension of time in terms of section 111(2) of the Act along with a note of appeal. The court granted the extension of time and the note of appeal was received on 6 October 2010.
[3] The note of appeal contained eight grounds of appeal. On 26 October 2010 leave to appeal was granted only in respect of grounds 1, 2 and 8. Grounds 1 and 2 related to the admission in evidence of the two police interviews of the appellant and ground 8 related to sentence. On 26 November 2010 leave was also granted in relation to ground 5 which concerned the admission of evidence of a text message. On 7 January 2011 the appellant sought leave to amend the note of appeal to add an additional ground of appeal concerning the absence of reasons for the jury's verdict but that application was refused.
[4] Between 5 and 7 April 2011 the appeal court heard submissions in respect of preliminary issues raised by the Crown relating to the question of waiver and time‑bar. On 11 May 2011 the court repelled the Crown submissions in relation to each of the following issues: the applicability of section 118(8) of the Act; waiver; the appellant's failure to object at trial to evidence concerning the police interviews of the appellant and section 100(3B) of the Scotland Act 1998 ("the 1998 Act") (Jude v HMA 2011 J.C. 88). On 15 June 2011 the court granted the Crown's application for leave to appeal to the Supreme Court in relation to the question of waiver and the application of section 100(3B) of the 1998 Act.
[5] The appellant's appeal had been conjoined with the appeals of two other appellants which raised similar issues. On 11 and 12 October 2011 the United Kingdom Supreme Court heard the conjoined appeals. Before that court the Lord Advocate restricted his submissions in this appeal to the application of section 100(3B) of the 1998 Act and abandoned his case based upon alleged waiver of the appellant to the entitlement of a solicitor prior to his police interview. On 23 November 2011 the United Kingdom Supreme Court refused the appeal at the instance of the Lord Advocate (Jude v HMA 2012 SCCR 88).
Grounds of appeal
[6] Against that procedural background grounds of appeal 1, 2, 5 and 8 had to be determined by this court. As it had been conceded at a procedural hearing on 23 December 2011 that there was no longer any need for this appeal to be heard along with the other appeals, with which it had been conjoined, the appeal hearing on 28 March 2012 was confined to this case. In the course of that latter hearing, counsel for the appellant advised the court that the appellant no longer insisted upon his appeal against sentence (ground 8). In these circumstances the submissions were restricted to the remaining three grounds of appeal which were in the following terms:
"1. At the appellant's trial the Crown led evidence of two interviews between the police and the appellant which took place on 2 September 2007 and 28 December 2007 respectively. The appellant did not have access to legal representation before or during the police interviews despite having requested the attendance of a solicitor. The evidence of the appellant's police interviews was relied on by the Crown both as evidence which tended to incriminate him and also to demonstrate that he had changed his account of his involvement. It is submitted that the use of this evidence rendered the appellant's trial unfair in the circumstances of this case. Reference is made to the decision of the Grand Chamber of ECHR in the case of Salduz v Turkey (36391/02) (November 27, 2008). In relying on that evidence and seeking a conviction the Lord Advocate, through her depute, was acting incompatibly with the appellant's rights under Article 6(3)(c) & 6(1). Such an Act was ultra vires. Reference is made to section 57(2) of the Scotland Act 1998.
2. The trial judge ought to have directed the jury to disregard the evidence of the police interviews in so far as it was relied upon by the Crown. Reference is made to the directions which were given at p6 line 11-p9 line 10 and p27, lines 3-15. These directions did not act as any safeguard on the use to which the Advocate depute had sought to put the evidence.
5. The learned trial judge erred in repelling an objection to the evidence of a text message alleged to have been sent by the appellant to Shaun Cumming. Properly understood the text message was evidence of a crime not charged and therefore inadmissible. Reference is made the case of Nelson v HMA 1994 JC 94 at p104 [then follows a quotation commencing with the last paragraph on page 103 (not 104) and ending with the paragraph which concludes at 104 D-E]".
Submissions on behalf of the appellant
[7] Mr Shead submitted that the Crown had violated the appellant's rights under Article 6 of the European Convention on Human Rights ("the Convention") by leading evidence of the appellant's police interviews and relying upon that evidence. He acknowledged that to be insufficient on its own to justify the quashing of the conviction and appreciated that he had to satisfy the court either that there was insufficient evidence for a conviction without the evidence of the police interviews or that, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict if...
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