Appeal Against Conviction By Kp Against Her Majesty's Advocate

JurisdictionScotland
JudgeLord Malcolm,Lord Glennie,Lord Justice Clerk
Judgment Date28 July 2017
Neutral Citation[2017] HCJAC 57
CourtHigh Court of Justiciary
Docket NumberHCA/2016
Published date28 July 2017
Date28 July 2017

Web Blue HCJ

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 57

HCA/2016/000569/XC

Lord Justice Clerk

Lord Malcolm

Lord Glennie

OPINION OF THE COURT

delivered by LORD MALCOLM

in

APPEAL AGAINST CONVICTION

by

KP

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant: Paterson (sol adv); Paterson Bell Solicitors, Edinburgh for McKennas, Glenrothes

Respondent: S Fraser AD; Crown Agent

28 July 2017

[1] By verdict of the jury the appellant was convicted of the abduction, assault and rape of a 15 year old girl. He was sentenced to imprisonment for five years. He now appeals against his conviction. The first ground of appeal is that the cross‑examination of the appellant by the advocate depute and his subsequent speech to the jury were so prejudicial to the appellant that, notwithstanding the directions made to the jury by the trial judge in this regard, he did not receive a fair trial. The second ground of appeal is that the trial judge should have upheld a motion on behalf of the appellant, based upon certain questions put to him by the advocate depute, to desert the trial pro loco et tempore.

[2] The circumstances of the offence were as follows. The appellant (along with a group of other young men) and the complainer (along with a group of other young women) were socialising on a beach. The appellant helped the complainer down from a rock and, standing behind her, put his hands over her shoulders and down her trousers. She removed his hands and they began kissing. They passed through an archway in a wall to a separate, isolated area of the beach, where sexual intercourse took place. The appellant lodged a special defence of consent. The complainer’s evidence was that she did not consent, and there was evidence of distress and injury. There was also evidence from the complainer that during the incident she used her mobile phone to try and call one of her friends. The friend’s voicemail recorded the complainer saying “You are raping me” and “(K), get off me”.

[3] In his evidence the appellant did not have any detailed recollection or explanation of the events. Most of his evidence was to the effect that the complainer had consented to intercourse. In relation to the voicemail, he maintained that the recorded conversation did not take place.

The cross-examination of the appellant
[4] The cross‑examination began with the advocate depute telling the appellant that he raped the complainer and that this was his chance to tell the truth. It was put to him that he was lying. After some questions relating to the events on the day, the advocate depute said “you came here just to lie today to get off the charge of rape, didn’t you?”, to which the appellant replied “No”. This prompted what became a theme of the cross‑examination, namely that the appellant was saying that the complainer and other female witnesses were liars. It was put to him that “All you’re just going to do is deny everything that sounds as if it is trouble because you just want to fool the jury into letting you go free?” It was put to the appellant that when he first went to see the complainer he was behind her and, without permission, put his hands down the back of her trousers. He agreed with this. “So you sexually assaulted her in that way? – I never sexually assaulted her. Well if you put your hands down her trousers into her groin area what did you ... – I never put her (sic) hands down her trousers.” It was then put to the appellant that he stuck his hands “down the inside of her trousers near her crotch area” – this was denied.

[5] At a later passage the advocate depute said “and you chucked her onto the rocks and you pulled her trousers down and you snapped her thong and you raped her, didn’t you? – No.” The appellant was asked whether he was under the doctor for problems with his memory. There was a lengthy chapter of questioning relating to the voicemail recording. He was asked whether he thought that they had just “fabricated this thing”, to which he replied “I don’t know to be honest.” Again it was put to him that his evidence was nothing but a “whole load of lies” and that he now had a chance “to make this thing right”, to which the appellant said “That’s what I’m doing.” “You’re lying – Well you say I’m lying.” The advocate depute agreed that he was saying that the appellant was lying, and he commented that the appellant was saying that the complainer and two other female witnesses were lying. Returning to the phone message, the appellant was asked where it came from ‑ “I don’t know. She wasn’t on her phone when she was with me.” A short while later he was asked “Do you often have sex with people and just forget about it completely later? – No. I mean will you go out tonight and have sex with somebody?” At this point the solicitor advocate for the appellant objected to this question. The advocate depute stated that he would withdraw it, however the solicitor advocate still wanted to address the court.

The motion to desert the trial
[6] In the absence of the jury and the witness, a motion was made that the trial be deserted pro loco et tempore on the basis that the most recent questions were prejudicial to the appellant as constituting an unwarranted attack on his sexual character. The advocate depute, focusing on the question which had not been withdrawn, argued that it was justified on the basis that “themes of sex and memory” had been a feature of the evidence. Having adjourned overnight to consider the application, the trial judge took notice of the earlier part of the cross‑examination in which the appellant had been asked about what was described as a “sexual assault”. There had been no objection; however there was nothing in the indictment alleging a prior sexual assault on that factual basis, and the trial judge was concerned that the advocate depute’s characterisation could be prejudicial to the appellant. He canvassed this issue with the parties.

[7] Ultimately the judge ruled that the objection should be sustained as the line of questioning was irrelevant and without evidential basis. So far as the motion to desert was concerned, the view was taken that various inappropriate questions could be dealt with by instructing the jury to exclude them from their consideration. He did consider whether it would be more appropriate simply to ignore the offending questions rather than draw the jury’s attention to them in his charge, however he decided that specific directions were necessary. As to the earlier questioning, the jury could be relied upon to disregard the use of the label “sexual assault” when directed to do so. No prejudicial matter had been contained in any of the appellant’s answers.

The advocate depute’s speech to the jury
[8] For whatever reason, at an early stage of his speech the advocate depute assured the jury that “as a matter of law” there was enough evidence to convict the accused. If anything was to be said on the matter of sufficiency of evidence, and many judges take the view that this is an unnecessary and potentially confusing direction, this was a matter for the trial judge, not prosecuting counsel. It is understandable that in order to put their speeches into some context or framework, counsel will sometimes refer to legal matters, but this should be done with discretion and no more than is necessary for that limited purpose. The advocate depute then told the jury that there is more than enough “quality” in this case to show that the accused raped the complainer, “and that has been proved by the evidence beyond reasonable doubt, as I’ll go on to show.” At a later point he spoke of the complainer being “yanked” through an archway. He referred to evidence from the complainer that “He picked me up like a baby”. The advocate depute invited the jury to believe her “because that’s what happened. And then he carried (her) to a place where he raped her.” There are other passages where it was made plain that the advocate depute was of the view that the complainer’s evidence was in accordance with the facts of the matter. For example on one occasion he said that her evidence was “the truth”. He described one response from the appellant to the recorded voicemail message as “breathtaking, the arrogance of it, he is simply panicking.” He concluded his speech by stating to the jury that the essential elements of the case “have all been proved beyond reasonable doubt.”

[9] In his report to this court the trial judge observed that the advocate depute stated to the jury that certain facts were true and that certain things had in fact happened, even though the matters were in dispute. He appeared to express his own opinion of the appellant, using the expression “breathtaking arrogance.” Although the solicitor advocate criticised parts of the Crown speech as being inappropriate, no further motion to desert the diet was made. The trial judge decided that the assertions and comments made on behalf of the Crown gave him cause to add further points to his directions. There was no question of deserting the trial at his own hand as he considered that these further issues, and the cumulative effect of all of the points raised, could be dealt with by appropriate directions in his charge.

The trial judge’s directions to the jury
[10] At the outset of his charge to the jury the trial judge made the standard directions to the effect that the jury and the jury alone were the judges of the facts in the case, and that what anyone else thought was of no importance. The jury was told that questions were not evidence and that it was only the evidence which they should consider. The contents of the speeches were not evidence and if they thought that any personal views were expressed in the speeches as to what happened, or what was true, or any opinions were expressed, they should be ignored as these were matters for the jury to decide.

[11] Later in his charge, in a lengthy passage which extends over five pages of the...

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