Ernest Radic Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Turnbull,Lord Menzies,Lord Justice General |
| Neutral Citation | [2014] HCJAC 76 |
| Year | 2014 |
| Docket Number | XC408/13 |
| Published date | 22 July 2014 |
| Court | High Court of Justiciary |
| Date | 18 June 2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY SITTING AT GLASGOW
| |
|
| [2014] HCJAC 76 |
| Lord Justice General Lord Menzies Lord Turnbull
| Appeal No: XC408/13
OPINION OF THE COURT delivered by LORD MENZIES
in
APPEAL AGAINST CONVICTION
by
ERNEST RADIC Appellant;
against
HER MAJESTY’S ADVOCATE Respondent:
_______
|
For the appellant: Moir; Gilfedder McInnes, Edinburgh
For the Crown: Prentice QC (sol adv) AD; Crown Agent
18 June 2014
[1] The appellant was indicted, together with two co-accused, on a charge of rape. The case first called at a preliminary hearing on 22 October 2012. After two further preliminary hearings, a trial diet was fixed for 22 April 2013. Prior to this, the appellant had timeously lodged a special defence of consent and a notice of incrimination against one of his co-accused.
[2] We were told that the appellant was originally represented by Mr Fitzpatrick, solicitor advocate, acting as “leader” and Mr Mulgrew, solicitor advocate, acting as junior. In the course of preparing for the trial, they discussed between themselves whether a minute should be lodged objecting to the admissibility of a statement given by the appellant to police officers. Mr Fitzpatrick decided that this was not necessary; Mr Mulgrew did not agree with Mr Fitzpatrick but abided by his view. However, after further discussions, Mr Fitzpatrick changed his mind and drafted a minute objecting to the admissibility of the statement by the appellant. This minute was lodged on 10 April 2013 and intimated to the Crown, but no steps were taken at that time to move the minute. Thereafter Mr Fitzpatrick returned his papers due to a clash of commitments, and on 15 April 2013 counsel was instructed to appear on behalf of the appellant, with Mr Mulgrew as his junior.
[3] On the first day of the trial on 22 April 2013, but before the trial had commenced, counsel sought leave to argue the minute though late. The advocate depute opposed this motion, although he accepted that no prejudice was caused to the Crown by the matter being raised late.
[4] The trial judge narrates in her report to us the argument advanced before her on behalf of the appellant as follows:
“The substance of the objection to admissibility was that the police had taken the appellant to the police station late on the night on which the crime was said to have happened and had noted statements made by him. He had been treated as a witness, not as suspect and so had not been cautioned and had not been given the opportunity to have legal advice. He had made admissions which could be incriminating. Counsel submitted that productions 31 and 32 were respectively a statement and a piece of paper both of which contained narrations of words said to be spoken by the appellant to the police. In production 31 the appellant indicated that he had met a girl whom he did not know in the street and that she had gone to his home with him. There followed sexual contact consisting of kissing touching and “a blow job”. In production 32 there was mention of kissing and a “blow job” and the words “no sex” were noted.
Counsel argued that the police should have cautioned the appellant and should have given him the opportunity to get advice from a solicitor. He was the householder of a flat in which the police had been told a sexual assault had occurred in which one of the perpetrators was the tenant of the flat. He was present at the flat within a few hours of the report of the crime. It was unfair to ask him any questions as he was a suspect.”
[4] The trial judge decided to refuse leave, in terms of section 79(1) of the Criminal Procedure (Scotland) Act 1995, for the preliminary issue of the admissibility of this evidence to be heard. She summarised her reasons for doing so in her report to her as follows:
The charge against the appellant was that of rape. He had lodged a special defence of consent, and there were amongst the productions for the case a report from which I could anticipate that the Crown would seek to lead evidence that DNA likely to come from semen belonging to the appellant was found on the complainer in her vagina and in her rectum.
It seemed to me that the evidence to which objection was sought to be taken was not the only adminicle of evidence in the case from which it could be inferred that the appellant was guilty. As stated above there was likely to be evidence of DNA and the complainer herself was also a witness. While it was of course for the Crown to prove its case and the existence of a special defence did not in any way negate the burden on the Crown, it seemed to me that I could take into account the fact that a special defence had been lodged. In light of it, the appellant would not positively assert that there had been no sexual intercourse. I ascertained from both counsel for the defence as well as the advocate depute, in the course of their submissions, that they agreed that I was entitled to have regard to the existence of the special defence. I accepted that there would be prejudice to the appellant as he apparently had made inconsistent statements as he did not admit to sexual intercourse when seen by the police that night.
I then considered the lateness of the minute. It seemed to me that the cause which had been shown was a tactical or strategic decision taken in the course of preparation of the defence.
Having considered the reason for lateness along with the importance of the evidence to be led, I came to the view that the minute should not be heard.”
[5] Thereafter the trial commenced. Evidence was given by two police officers as to the circumstances leading up to the appellant making a statement to them and the terms of that statement. We deal with this evidence in more detail below. There were other important elements of evidence led for the Crown, including forensic evidence about the likelihood of semen found within the complainer’s vagina and in her rectum having come from the appellant, and medical evidence that the complainer had tears in the area of her vagina and a small bruise at her anus, which signs were most likely indicators of forceful intercourse but were also consistent with what the witness described as energetic sex. The complainer was found in the street in a distressed state by three passers-by. The appellant gave evidence and maintained his special defence of consent and his incrimination of his co-accused. He gave evidence that the complainer consented to vaginal sexual intercourse and that he did not have anal intercourse with her. He gave evidence that his co-accused did have anal intercourse with her.
[6] In due course in her charge the trial judge directed the jury that the evidence about what the appellant said to the police was admissible, but that they had to consider if they thought it was fairly obtained, and if they thought not then they were entitled to give it little or no weight.
[7] Before us, counsel made two submissions – (1) that the trial judge erred in the exercise of her discretion in refusing to hear the minute objecting to the admissibility of the evidence of the appellant’s statement to the police, and (2) that the circumstances surrounding the appellant’s statement to the police were so unfair as to render the statement inadmissible and to render the appellant’s trial unfair and resulted in a miscarriage of justice.
The evidence about the appellant’s statement to the police
[8] We were provided with transcripts of the evidence of PC Guy and PC Gray, who were the police officers to whom the appellant made the statement in question. In her report to us the trial judge summarised their evidence as follows:
“In due course evidence was led from the police officers. It was to the effect that they were instructed by a superior officer to attend at the flat which was tenanted by the appellant. They were told that a complaint had been made that a woman had been raped by several men in the flat that night. They were also told that one of the alleged perpetrators was of Asian origin and that his name was “Malik” and that it was his flat. They stated that they stood by the flat in which there were no occupants, and that the appellant arrived at it. They asked him for his name which he gave as “Ernest Radic”. He told them that he was Slovakian and showed them his passport which gave his nationality. They sought instructions and detective officers came to the locus and asked the appellant to attend at the police station.
DC Guy gave evidence to the effect that he regarded the appellant as a witness. He agreed to go to the police station. Mr Guy knew that other police officers had been given the name ‘Malik’ for one of the perpetrators. At the police station he found that the appellant had little or no English. He told the police he was Slovakian and so they made arrangements to get an interpreter for that language. It took about one hour for an interpreter to arrive. When she arrived, the appellant, the interpreter, Mr Guy and another police officer, Mr Gray were in a room together. According to Mr Guy, he asked one question through the interpreter, which was to the effect that an allegation of a female being sexually assaulted at his flat had been made, and did he have any knowledge that would assist the police. He said that the interpreter spoke continuously in reply to that, apparently translating what the appellant said. Mr Guy said that production 32 was his note of what the interpreter said. He did not ask the interpreter to slow down, and noted it as best he could. He then told the appellant to stop, and Mr Guy went to consult with a superior officer. He was aware that a decision was made to detain the appellant. In cross examination Mr Guy accepted that the appellant could have been a suspect as he came to the flat within hours of the allegation being made and said he lived there. Mr Guy said he did not have information which made the...
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