Colin Grimason v. Her Majesty’s Advocate [2020] HCJAC 53

Note of appeal against conviction:- On 18 June 2018, following a trial on indictment at the High Court, the appellant was convicted of a charge of sexual assault contrary to sections 2 and 3 of the Sexual Offences (Scotland) Act 2009. The appellant appealed against his conviction on the grounds that he had been defectively represented at trial resulting in a miscarriage of justice. It was contended that:- (1) counsel for the appellant failed to put to the complainer in cross-examination that she was wrong and lying in her recollection that she had been grabbed, pulled down and strangled by the appellant; (2) that part of counsel’s cross- examination of the complainer suggested that the appellant may have engaged in an event which he understood to be consensual, whilst he was under the influence of alcohol and he stopped when he realised the complainer was frightened, or that his conduct may have been viewed as inappropriate by passers-by and this formed no part of the appellant’s instructions to counsel; and (3) that in his speech to the jury counsel restricted his criticisms of the complainer’s evidence to suggest she may have been unreliable and in other aspects of his speech commended aspects of her credibility which failed to address the conflict between the complainer’s evidence and that of the appellant in relation to whether he continued kissing her after she made it clear that he should stop and then pushed her to the ground and choked her. On behalf of the appellant it was submitted that the aspects of counsel’s cross-examination of the complainer and the tenor of his speech to the jury were not in accordance with his instructions and went beyond the tactical discretion afforded to counsel and were likely to have caused the jury to view the appellant and his evidence negatively. It was submitted on behalf of the appellant that aspects of counsel’s cross-examination of the complainer did not reflect the appellant’s defence which was one of consent but was limited to the appellant kissing the complainer and putting his hand on the outside of her vagina but not penetrating her in any way. It was further submitted on behalf of the appellant that there was no room for the suggestion that he had behaved inappropriately whilst his senses were dulled by drink and had only stopped when he appreciated this and there was no basis for counsel to seek to reconcile the complainer’s evidence. Furthermore, it was necessary, in light of the appellant’s position that he did not conduct himself in the manner described, particularly in relation to the allegation he had strangled her, for counsel to cross-examine her on the basis that she was lying. In relation to counsel’s speech to the jury it was submitted that in light of the narrow nature of the special defence of consent counsel ought to have made it clearer to the jury the parts of the complainer’s account which the appellant accepted as occurring (albeit consensually) and those he did not. It was submitted that in light of counsel’s approach to cross-examination and his speech to the jury the appellant had been denied a fair trial and a miscarriage of justice had occurred. On behalf of the Crown it was submitted that on account of the evidence led there was not such a stark conflict between the evidence of the complainer and the evidence of the appellant and trial counsel ought to be afforded a wide discretion in how the appellant’s defence be conducted. Here the court refused the appeal. The court considered that the appellant’s general denial did not necessarily equate to the complainer’s evidence being untruthful and there was no requirement for counsel to use any particular language when challenging a witness as the use of language, the formulation of questions and propositions generally is a matter for the discretion and professional judgment of counsel. The court considered that in the particular circumstances of this case there was no basis for putting to the complainer that she was lying. The court considered that it was clear from the cross-examination of the complainer that counsel was seeking to challenge and undermine the reliability of the complainer in her account and, beyond the terms of the special defence of consent, the appellant’s position was one of denial to the remainder of the conduct described and provided counsel with discretion in how to lay a foundation in his speech that the complainer’s evidence should be rejected. The court observed that the appellant had given evidence on his own behalf which was referred to by the trial judge in his charge to the jury. In relation to the criticisms made of counsel’s speech to the jury the court considered that there was no basis for suggesting that there was a binary choice between the respective accounts that one of them was telling lies. In relation to the criticism that counsel had not adequately differentiated between the conduct the appellant said was consensual and the rest of the libel which the appellant simply denied occurring the court considered that counsel had been limited in what could be said to the jury in light of the evidence led and was not inconsistent with the appellant’s defence and could not be criticised.