S.d. V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Justice Clerk,Lady Clark Of Calton |
| Neutral Citation | [2014] HCJAC 17 |
| Year | 2014 |
| Docket Number | XC741/12 |
| Published date | 21 February 2014 |
| Court | High Court of Justiciary |
| Date | 30 January 2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Drummond Young Lady Clark of Calton | [2014] HCJAC 17 XC741/12 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK IN APPEAL AGAINST CONVICTION AND SENTENCE by SD Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________ |
Appellant: Findlay QC, Crowe; Capital Defence (for J Myles & Co, Carnoustie)
Respondent: Scullion AD; the Crown Agent
30 January 2014
Introduction
[1] On 10 August 2012, at Aberdeen High Court, the appellant was convicted of four charges involving an escalating pattern of abduction or attempted abduction of girls in Aberdeen over the period October 2007 to January 2012. The final incident, with which this appeal is concerned, involved the abduction, assault to injury and rape of EW, aged 15, by seizing her in the street, putting her in the back of his car, handcuffing her, driving her to Torry Battery, pulling down her lower clothing, grabbing her bottom and repeatedly penetrating her vagina.
[2] On 7 December 2012, the appellant was made the subject of an Order for Lifelong Restriction, with a punishment part of 5 years. This appeal concerns only the rape element of the conviction; the appellant having accepted that he abducted the girl and drove her to the locus.
Evidence at Trial
[3] The complainer gave evidence that she had been walking home from a party in an intoxicated state. She fell over. The appellant pulled up in his car, picked her up and put her in the back of the car. He handcuffed her hands behind her back. He took her to an isolated car park at the Torry Battery, where he released her handcuffs, led her to a part of the park, where there were pillars, took her trousers down and touched her vagina. He put on a condom and, having lifted her leg a little, penetrated her three times. This had been painful for her. On the third occasion, he had seized her by the buttocks and said "Don't do it again", before putting the condom in his pocket and walking back to his car. The complainer ran off and, having failed to raise anyone at a nearby golf clubhouse, went to the home of a friend.
[4] Corroboration came in the form of the complainer's distress when she arrived at the friend's house shortly after the incident. Her trouser buttons were undone. On medical examination, she had a number of areas of bruising, including on her wrists. Significantly, she had two recent tears to the genital area, consistent with an account of rape, which would have been painful and had been caused by blunt force entering the vagina with a degree of speed. The tears were almost opposite to one another; one at the 2 o'clock position and one at 7 o'clock. In particular, there was a "Mercedes Benz", almost T shaped, shallow tear, on the right labia minora and a shallow V shaped abrasion, approximately 1cm in diameter and pointing inwards, on the left labia minora. Both wounds were bleeding at the time of examination and swabbing caused pain. The doctor was unable to take a high vaginal swab.
[5] There was no DNA from the appellant on the complainer or her clothes. However, traces of DNA from an unknown male were found on the upper front of the complainer's pants, which could have been transferred there directly by contact or by secondary means.
[6] In his interview by the police, the appellant admitted abducting the complainer and taking her to the Torry Battery. He said that he had not sexually assaulted her. When they had arrived at the car park, the complainer had wanted the toilet. She had sat down near "a little fence thing". He had then left. In a subsequent voluntary statement, he had admitted handcuffing the complainer, sitting her down and seizing her when she had attempted to get up. However, he still maintained that he had then driven off.
[7] The appellant did not give evidence, but the defence line was in accordance with his interview and statement to the police. The complainer was cross-examined on the basis that she had not been raped by the appellant. In his speech to the jury (see charge p 59), the appellant's solicitor advocate challenged the complainer's credibility and reliability by focusing upon her drunken state, the absence of DNA from the appellant and the finding of the DNA of another male on her pants. He stressed that there was no forensic evidence to corroborate the complainer's account of penetration.
The Note of Appeal
[8] The Note of Appeal was lodged on 2 May 2013. It states that, in preparation for the trial, the appellant had said to his lawyers that "due to the size of his penis, he would have been unable to have sexual intercourse in the manner alleged by the complainer". It continues that he had said that he wanted to be medically examined. However, no examination had taken place and this had amounted to "a complete failure to put forward this important line of defence at trial".
[9] An examination subsequent to trial by Dr Michael O'Keefe, an "Independent Forensic Physician" with many years of experience as a forensic medical examiner, had resulted in a diagnosis of "micro-penis". In terms of Dr O'Keefe's report of 17 April 2013, this is a clinical term used to describe an "abnormally small penis", being smaller than about 7cm (3"); an average erection being 12.5cm (5"). The condition occurs in about 0.6% of males. The appellant's erect penis was recorded as 6.25cm in length, 1.5cm diameter and 2cm circumference. The doctor was of the view that, although the appellant could have sexual intercourse, this was only with difficulty, especially were there to be resistance.
[10] The Note of Appeal contended that, whilst possible, it was "highly unlikely" that the appellant would have been able to have sexual intercourse with the complainer unaided and that this evidence ought to have been before the jury. A medical report from Professor Busuttil, Regius Professor of Forensic Medicine (emeritus), dated 30 April 2013, (ie after the trial) had stated (para 6.1) that, if the vaginal injuries had been caused by a penis, this would have been one of "normal size when erect". Having repeated some of the general data in Dr O'Keefe's report, Prof Busuttil concluded that:
"The clinical findings of a 'micro-penis' would make it unlikely for this man to have caused the serious genital injuries seen on the complainer as a result of forceful non-consensual sexual intercourse."
All of this then amounted to a case of defective representation at trial, leading to a miscarriage of justice.
The Responses
[11] In a letter dated 26 July 2013, the solicitor advocate who conducted the appellant's defence (IMP) explains that his instructions had been that the appellant accepted that he had abducted the girl, handcuffed her and taken her to the locus. He had, however, simply left her there and his actions had not been sexually motivated. At his first consultation with the appellant, on 26 April 2012, the appellant had explained that he had a small penis. However, he accepted that he could have sexual intercourse with his wife and had demonstrated how he could achieve this in a standing position. In his interviews with the police, the appellant had accepted that he had had sexual intercourse with another woman. Condoms had been found at the appellant's home, which he accepted he used during sexual intercourse with his wife.
[12] A report dated 21 May 2012 was obtained from Prof Busuttil. This described the medical findings in relation to the complainer and confirmed (para 8.7) the existence of "evidence of forceful vaginal penetration ... with some degree of force", which was more likely to have been caused by penile rather that digital penetration (para 8.8).
[13] A file note taken by an instructing solicitor (LQ) records discussions at a meeting between the solicitor and two solicitor advocates (IMP and CF) on 29 May. The discussions included the need for legal aid sanction to obtain a further report from Prof Busuttil concerning the appellant's contention that he was physically unable to have sexual intercourse whilst standing up due to his unusually small penis. The solicitor advocate (IMP) had wanted the professor to examine the appellant in order to provide an opinion on whether the injuries could have been caused by penetration by the appellant's penis. A note from the other solicitor advocate (CF), dated 21 June 2012, records the appellant's position as being that he could not achieve penetration whilst standing up (cf IMP supra) and that "accordingly" the professor should be instructed to perform an examination of the appellant's penis.
[14] The solicitor advocate (IMP) writes in his letter (supra) that he met the professor on 2 August 2012 and asked him specifically about the appellant's contention that he could not have had sexual intercourse with the complainer because of the size of his penis. The solicitor advocate told the professor that the appellant had said that his penis was about 1 to 2 inches in length, with the girth of an average pinkie. He reports that the professor had explained that:
"because the injuries were not in the location that he would expect to find them, close by, but not in the usual place, the small size of his penis may, or perhaps even would, explain why the injuries were in this unusual location."
The solicitor advocate accepted this view and considered that such evidence would have "dramatically hindered" the defence.
[15] A file note of this meeting, taken by an unqualified assistant (AS), records that the first issue discussed was whether the size of the appellant's penis mattered in determining whether it could cause the damage. The note continues:
"Prof Busuttil explained that no matter what size the penis is if it is erect then it is going to cause damage. This could explain the presence of injuries in unusual places."
[16] The solicitor advocate (IMP) continues in his letter (supra) by stating that he explained this to the...
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