Spencer James Mellors V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Hamilton,Lord Macfadyen,Lord Justice General |
| Court | High Court of Justiciary |
| Docket Number | C412/96 |
| Date | 22 July 1999 |
| Published date | 22 July 1999 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Justice General Lord Hamilton Lord Macfadyen | Appeal No: C412/96 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL AGAINST CONVICTION by SPENCER JAMES MELLORS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Burns, Q.C.; Anderson Strathern
Respondent: A.P. Campbell, Q.C., A.D.; Crown Agent
22 July 1999
The appellant is Spencer James Mellors who was convicted at the High Court at Glasgow on 2 July 1996 of a charge of rape. He appealed against his conviction on various grounds, but was granted leave to appeal on one ground only, relating to the direction which the Trial Judge gave on the special defence of alibi. The appeal proceedings have, however, run for a period of almost three years and during that time they have become rather complex. It is necessary to explain a little of the background.
On 13 January 1998 the court allowed the appellant to lodge a ground of appeal relating to what was said to be additional evidence from Joseph Williamson, which was not heard at the trial. The court proceeded to hear argument on both the original (alibi) ground and the additional ground. During the hearing certain information came to light as to what appeared to have been a failure on the part of the Crown at the trial to inform the defence that Williamson, who had not been cited and was not present at the court, had been found by the police. The court continued the hearing until 13 February when the appellant was allowed to lodge a further ground of appeal, based on what was said to be a miscarriage of justice caused by the Crown's failure to inform the defence that Williamson had been found. On that occasion the court ordered that Lord Philip should hear and report on the evidence of Williamson. Due to the difficulties in fixing a diet suitable to the parties, the evidence was not heard until 16 October 1998 and, shortly thereafter, Lord Philip reported on the hearing, a transcript of which was lodged with the court. When the court came to consider his report in June 1999, the composition of the court was different from its composition in 1998 and Mr. Burns, Q.C., appeared in place of Mr. McSherry, the solicitor advocate who had conducted the earlier stages in the appeal. For these reasons we in effect reheard the appeal on the alibi ground, the fresh evidence ground and the ground based on the failure of the Crown to inform the defence about Williamson.
The circumstances of the offence can be set out fairly shortly. The complainer in the rape charge is a prostitute who at the time in question worked in the Anderston area in Glasgow. According to her evidence, in the early morning of Sunday 29 October 1995 - we return to the matter of the time below - a man approached her and she agreed to go to his flat for a fee of £50. When they got to his house in Drumchapel, she asked for the money but the man said that she was not going to get any. He proceeded to rape her and to detain her in the house for several hours during which he raped her on a number of occasions and heaped other sexual indignities upon her. Eventually he agreed to release her but threatened her. He telephoned for a taxi which took the complainer back to the centre of Glasgow. At the trial, the defence in effect accepted that the complainer had been taken to the house which the appellant occupied at 67 Crawford Drive, Old Drumchapel. From the telephone records for that house and from the records of the taxi company it was clear that she left the house at about 1.36 p.m. on the Sunday afternoon.
At the trial the complainer identified the appellant as her assailant and said that he had a scar, which she described. The Trial Judge says that the appellant does have such a scar. At an identification parade, however, the complainer did not pick out the appellant and there was evidence that she had given a description of her assailant which did not match the appellant's description in some respects. But there was powerful support for her identification of the appellant. There was blood staining in 67 Crawford Drive which was consistent with its being blood from the complainer, with a 5,000 - 1 probability. In addition a piece of paper with the complainer's name and address was found in the house. Most importantly, seminal stains on the bedding and semen from the vaginal swabs taken from the complainer showed that the donor was 37,900 times more likely to be the appellant than an unrelated person and 7,400 times more likely to be from the appellant than from any cousin of his. We mention this last figure because the appellant had a defence of alibi coupled with an incrimination to the effect that any rape must have been carried out by the appellant's cousin David Grant Mellors. The Crown called a cousin David Mellors in replication: he said that he had not seen the appellant for about twenty-five years and knew nothing of the matter. The position of the defence was that the David Mellors called by the Crown was not the cousin in question, but the defence led no other cousin as a witness. In short, the position of the defence at the trial was that, although any rape must have occurred in the house at 67 Crawford Drive, it was not the appellant but a cousin who committed it.
Even though the evidence from the telephone records and from the taxi firm showed that the complainer had left the house at about 1.36 p.m., she said in evidence that the taxi had been called at about 2.30 - 3 p.m. It is plain therefore that the complainer's evidence about the time when she left at the end of the incident was not accurate - which is hardly surprising, given the ordeal which she had undergone. More important, however, was her evidence about the time when the incident began. In cross-examination she said that she met the assailant at "roughly four o'clockish in the morning, roughly". She said that she had asked a passer-by who had said it was about four o'clock, but she did not know exactly what the time was. She said that there had been a clock in the bedroom of the house in Drumchapel and that, when she first looked at it, the clock showed about 4.45. She agreed with a suggestion that roughly 45 minutes would have elapsed between the time when she met the man and the time when she saw the clock. In re-examination the complainer agreed that she had no idea whether the time on the clock was correct or whether the time on the clock changed while she was there. She said that she had no idea, within even half-an-hour, of the time when she entered the appellant's house, nor even the slightest idea, to within an hour, of the precise time when she left the house.
The relevant parts of the special defence lodged on behalf of the appellant were:
"That during the times the alleged offences are believed to have been committed the Panel was at the Victorias Night Club, Sauchiehall Street, Glasgow,
thereafter walking between the entrance of the aforementioned premises to a lane to the rear where he entered a private car and travelled by way of Renfield Street, Union Street, Jamaica Street, Broomielaw and Oswald Street to Midland Street,
thereafter, in the aforementioned private car he travelled on public roads along Jamaica Street, Clyde Place, West Street, Kingston Street, Tradeston Street, Cook Street, M8, Clydeside Expressway, Finnieston Street, Ferry Road, Ferry Street, Victoria Park Drive South, Westland Drive, Dumbarton Road, Yokermill Road, Garscadden Road, Manor Road and Crawford Drive,
thereafter he entered the house situated at 67 Crawford Drive and, after a time, travelled by private hire car to the house of Marie Coyle at 16 Howatt Street, Glasgow. Thereafter he travelled by motor vehicle to the Glaswegian Public House, 69 Bridge Street, Glasgow and that at the aforementioned places and during the aforementioned journeys the Panel was in the company or under the observation of" a number of persons whose names were listed.
The speech of the Advocate Depute makes clear that the Crown accepted that the evidence led in support of the alibi indicated that the appellant had indeed been away from the house which he occupied at 67 Crawford Drive for some of the early hours of the morning of 29 October. In particular it showed that the appellant had been involved in an incident with his car in the city centre which resulted in a high-speed chase by the police through the streets of Glasgow after which the appellant went to the house at 67 Crawford Drive. This chase is referred to in the part of the alibi relating to the appellant travelling on public roads "along Jamaica Street, Clyde Place ... Manor Road and Crawford Drive." During the chase a witness, Anne Marie Maguire, was in the car with other women. When they reached the house, they all went in and, some time later, a taxi was summoned and the women left, Miss Maguire going to the house of June Casey. The appellant telephoned June Casey's house, apparently to check up that Miss Maguire had reached there safely. The telephone records showed that the first call to that number was made at 5.10 a.m. and that there was a further call to the same number at 5.28. At 5.33 the records showed that a call was made from 67 Crawford Drive to the taxi firm which had taken the women away earlier on.
The defence position was that, when summoned at 5.33 a.m., the taxi took the appellant to the house of a girlfriend, Marie Coyle, as set out in the Special Defence. There he was said to have remained until a friend, James Henderson, picked him up at about 11.50 a.m. and went with him to the Glaswegian public house. Henderson and Malcolm, the manager of the public house, gave evidence in support of these aspects of the alibi. The position of the Crown was that, when summoned at 5.33 a.m., the taxi took the appellant into the Anderston area of Glasgow where he picked up the complainer and took her back to Drumchapel, that they went to the...
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