Thomson v HM Advocate [Appeal Court, High Court of Justiciary]
| Jurisdiction | Scotland |
| Judgment Date | 05 February 2010 |
| Neutral Citation | [2010] HCJAC 11 |
| Date | 05 February 2010 |
| Docket Number | No 14 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Kingarth, Lady Paton Lady Cosgrove
Justiciary - Procedure - Sexual offences - Restrictions on questioning of complainer on various matters refused - Whether exceptions to general restrictions correctly applied - Criminal Procedure (Scotland) Act 1995 (cap 46), secs 274(1), 275(1)(c)
Section 274(1) of the Criminal Procedure (Scotland) Act 1995 (cap 46) provided, inter alia, that in the trial of a person charged with rape or numerous other sexual offences the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer (a) is not of good character in relation to sexual matters or (c) has at any time engaged with any person in sexual behaviour not forming part of the subject matter of the charge. Section 275(1)(c) thereof provided, inter alia, that notwithstanding the provisions of sec 274(1), where the court is satisfied on application made to it that it would be contrary to the interests of justice to exclude such questioning or evidence, it shall allow the questioning or admit the evidence.
In the course of the appellant's trial, his counsel sought leave of the court to allow questioning of the complainer in terms of sec 275. The application was allowed in respect of sexual conduct said to have taken place on the day of the alleged rape between the complainer and the appellant and separately between the complainer and a third party. The application was refused in so far as it related to historical allegations allegedly made by the complainer regarding: abuse by her stepfather and false allegations of rape against a resident at a youth centre and medical staff at a hospital. The appellant was convicted of rape following cross examination by his counsel of the complainer on the matters which had been allowed. The appellant appealed against his conviction to the High Court of Justiciary but his appeal was refused.
A number of years after conviction, the Scottish Criminal Cases Review Commission referred the appellant's case back to the court on the basis that it believed that there may have been a miscarriage of justice. The commission's report made reference to evidence not available at the time of trial regarding certain previous allegations made by the complainer involving third parties which "may have been false" and also to evidence available at the time of the trial in relation to which witnesses were said not to have been cited by the appellant's agents at the trial. In the event, although leave for a second appeal on a number of grounds was granted, the appellant's solicitor-advocate at the appeal hearing argued only the ground relative to the refusal to question in respect of the same matters as referred to in the original appeal. The court in the course of a short ex tempore opinion reported that the appellant's solicitor-advocate had indicated to the court that, while not abandoning the appeal, he was not inclined to advance the argument with any conviction. The appeal was refused. The commission thereafter referred the appellant's case back to the court concluding that the consequence of the approach adopted by the solicitor-advocate was that the appellant was denied the opportunity of having his appeal properly argued before the High Court, resulting in a miscarriage of justice.
Counsel for the appellant argued that the questioning refused to be allowed by the trial judge was not, properly understood, excluded by sec 274. It related not to sexual conduct but rather to the complainer's credibility and reliability. The fresh evidence available was of such significance that the verdict reached in ignorance of it could be regarded as a miscarriage of justice.
The Advocate-depute for the Crown submitted that the trial judge had not erred and that the new evidence would not have been admissible or material. No reasonable explanation had been given for the absence of most of it at the original trial.
Held that: (1) the principal reason for refusal of the evidence at the trial had been the application of the common law, the evidence bearing on a collateral matter which was irrelevant to the particular circumstances of the charge (para 16); (2) the new evidence was unlikely to have been either admissible or material (para 23); (3) that the trial judge had accordingly not erred (paras 24-26); and appeal refused.
Thomas Thomson was charged on an indictment at the instance of the Right Honourable Andrew Hardie, Her Majesty's Advocate, the libel of which set forth a charge of rape. In the course of the trial at the High Court in Glasgow, upon completion by the complainer of her evidence in chief counsel for the appellant sought leave of the court to allow certain questioning under and in terms of sec 275(1)(c) of the Criminal Procedure (Scotland) Act 1995. The trial judge (Lord Bonomy) allowed the application in part and refused it in part. The jury at the conclusion of the trial convicted the appellant on 10 August 1999 ([2005] HCJAC 7). The appellant appealed to the High Court of Justiciary against that conviction. The appeal was refused, but thereafter referred back to the High Court by the Scottish Criminal Cases Review Commission. That appeal was also refused, but the case thereafter referred back to the court for a second time by the commission.
Cases referred to:
Advocate (HM) v Ronald (No 1)UNK [2007] HCJ 11; 2007 SLT 1170; 2007 SCCR 451; 2008 SCL 160
Cassels v HM AdvocateUNK [2006] HCJAC 20; 2006 SCCR 327
Green v HM AdvocateUNK 1983 SCCR 42
Megrahi (Abdelbaset Ali Mohmed Al) v HM Advocate sub nom HM Advocate v Al-Megrahi (Abdelbaset Ali) (No 4)SCUNK 2002 JC 99; 2002 SLT 1433; 2002 SCCR 509
Moir v HM Advocate sub nom MM v HM Advocate (No 2)SCUNK [2007] HCJAC 20; 2007 JC 131; 2007 SLT 452; 2007 SCCR 159
The cause called before the High Court of Justiciary, comprising Lord Kingarth, Lady Paton and Lady Cosgrove, for a hearing.
At advising, on 5 February 2010, the opinion of the Court was delivered by Lord Kingarth-
Opinion of the Court- [1] On 10 August 1999 at the High Court at Glasgow the appellant was found guilty of the following charge:
'On 18 May 1998 at 22 Johnston Street, Whins of Milton, Stirling you did assault [SG], residing there...
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