F.G. v. Her Majesty’s Advocate [2016] HCJAC 53

Note of appeal against conviction:- The appellant was convicted after trial on indictment of a charge of using lewd, indecent and libidinous practices and behaviour towards AB, aged between 7 and 11 years on various occasions between 1 December 1999 and 30 August 2003. A docquet was attached to he indictment giving notice that the Crown intended to lead evidence of the repeated rape of AB between 1 December 2002 and 30 August 2003. Following his conviction the appellant was sentenced to 4 years imprisonment. The fresh evidence which formed the basis of this appeal related to 2 different areas. Firstly, in a conversation a month after the trial the mother of the complainer, CD, had a conversation with ED, the estranged husband of CD, in which she stated “I got my revenge and I am moving to England and will return the matrimonial property to you”. At the trial CD had given evidence about admissions made by the appellant to her. It was submitted here on behalf of the appellant that CD’s evidence was motivated by animosity towards the appellant and a desire for revenge against him and the new evidence would relate directly to the credibility and reliability of CD and would have been of material assistance to the jury in considering the crucial issue of whether CD should be believed. The second area of new evidence related to property transactions in 2004 when CD sold property to the appellant’s brother in law. CD made allegations against ED of having hacked her account, similar allegations made in relation to the appellant hacking into her account had been made at the trial and the same allegations made by her against ED would also have reflected adversely upon her credibility and reliability and would have been relevant and significant evidence. It was submitted on behalf of the appellant that, given how important the evidence of CD was at the trial, the trial judge had directed the jury that unless they found both AB and CD credible and reliable they could not convict the appellant, the new evidence from ED had a material effect on the credibility and reliability of CD. It was submitted that the verdict of the jury which was reached in the absence of the ED’S material evidence amounted to a miscarriage of justice. On behalf of the Crown it was submitted that it could not be said that any antagonism from CD towards the complainer only arose after the trial indeed the suggestion that CD was motivated to fabricate her evidence out of malice was a central theme to the defence cross-examination of her. Whilst the new material could have been used by the defence it would only have supplemented the same line of cross-examination and the evidence was not of a kind and quality that a jury would have found it of material assistance in considering a critical issue at the trial. Here the court considered the new evidence by application of section 106 of the Criminal Procedure (Scotland) Act 1995 under reference to Al Megrahi v HMA, 2002 J.C. 99:- (1) the court may allow an appeal against conviction on any ground only if it is satisfied that there has been a miscarriage of justice; (2) in an appeal based on the existence and significance of additional evidence not heard at the trial, the court will quash the conviction if it is satisfied that the original jury, if it had heard the new evidence, would have been bound to acquit; (3) where the court cannot be satisfied that the jury would have been bound to acquit, it may nevertheless be satisfied that a miscarriage of justice has occurred; (4) before the court can hold that there has been a miscarriage of justice it will require to be satisfied that the additional evidence is not merely relevant but also of such significance that it would be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice; (5) the significance of the additional evidence is for the appeal court which will require to be satisfied that it is important and of such a kind and quality that it was likely that a reasonable jury properly directed would have found it of material assistance in its consideration of a critical issue at the trial; and (6) the appeal court would require to be persuaded that the additional evidence is (a) capable of being regarded as credible and reliable by a reasonable jury; and (b) likely to have had a material bearing on, or a material part to play in, the determination by the jury of a critical issue at the trial. Here the court refused the appeal. It considered that, in relation to the allegations of hacking, the evidence was inadmissible on account of it being collateral and, in any event, the allegation was not contained within ED’s affidavit. In relation to the statement made by CD regarding revenge against the appellant the court considered that another reasonable explanation for why the statement was made was due to CD’s satisfaction regarding the conviction of the appellant for abusing her daughter. The court took the view that the new evidence was not of such a kind and quality that it could be said that a reasonable jury properly directed would have found it to be of material assistance in its consideration of a critical issue at the trial and that the new evidence ought not to be given more significance or importance than it would have had had it been heard at the trial. In all of the circumstances the court considered that it could not be said that the jury’s verdict was reached in ignorance of the new evidence and it could not be said that there had been a miscarriage of justice.