The Scottish Criminal Cases Review Commission In The Case Of Mark Chamberlain-davidson
| Jurisdiction | Scotland |
| Judge | Lord Wheatley,Lord Menzies,Lord Justice General |
| Neutral Citation | [2012] HCJAC 120 |
| Year | 2012 |
| Date | 25 April 2012 |
| Court | High Court of Justiciary |
| Published date | 11 September 2012 |
| Docket Number | XC32/12 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Menzies Lord Wheatley | [2012] HCJAC 120 Appeal No: XC32/12 OPINION OF THE COURT delivered by the LORD JUSTICE GENERAL In the Reference by THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION in the case of MARK CHAMBERLAIN-DAVIDSON Appellant; _______ |
For the appellant: Miss S M McCall; John McRitchie & Co, Peterhead
For the Crown: Ms Wade AD; Crown Agent
25 April 2012
Introduction
[1] In June 2006 the appellant was convicted of assault with intent to rape. He was given an extended sentence of 30 months, the custodial part of which was 18 months. He appealed against conviction and sentence. At the hearing of the appeal in March 2010 he abandoned the appeal against conviction. The appeal against sentence was allowed and a sentence of 18 months imprisonment simpliciter was substituted.
[2] On 13 January 2012, the Scottish Criminal Cases Review Commission (the Commission) referred the case. The question before us is whether we should reject the reference on the ground that it is not in the interests of justice that it should proceed (Criminal Procedure (Scotland) Act 1995 (the 1995 Act), s 194DA). We considered this reference along with the references in the cases of RM and Edward Gallagher in which the same issue arises. I refer to my Opinion in those cases for a summary of the relevant legislation (RM v HM Adv; Gallacher v HM Adv, [2012] HCJAC 121).
[3] In this case the Crown has taken a different position on the question of finality and certainty.
The evidence at the trial
[4] The complainer's account was that the appellant approached her in the street. He said that he wanted sex. He grabbed her wrists. She screamed. He put his hands over her mouth and told her to stop screaming. She broke free and fled towards a nearby car park. There she met the witness SP and told her what had happened.
[5] SP said that as she drove her car into the car park she saw the appellant walking out of it. While she was parked she heard screaming. She got out of the car. The complainer ran into her arms. The complainer was hysterical. She was shaking and crying. She described the attack.
[6] The appellant was interviewed by the police. He said that he had met the complainer, but had merely said hello to her as he passed. She started to scream. He then grabbed her wrists.
[7] The appellant did not give evidence.
The appellant's application to the Commission
[8] The appellant complained to the Commission that there was no corroborative evidence to support the allegation that the assault was carried out with intent to rape. He submitted that the sheriff had given inadequate directions as to (1) the reliance that the appellant could place on his police interview as a mixed statement, (2) the evidential value of the complainer's distress and her de recenti complaint to SP; and (3) the definition of rape. He submitted that the evidence of the police interview had been led in breach of his article 6 rights. He relied on the decision of the Supreme Court in Cadder v HM Adv (2011 SC (UKSC) 13) that had been given on 26 October 2010.
The Commission's decision and its reasons
[9] The Commission observed that the only evidence to support the allegation of intent to rape came from the complainer. According to the Commission's understanding of the law, an aggravation that is libelled need not be proved by corroborated evidence (Reference, paras 91-94). There was therefore no miscarriage of justice in this...
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