K.P. v. Her Majesty’s Advocate [2017] HCJAC 57

Note of appeal against conviction:- The appellant was convicted after trial at the High Court of abducting, assaulting and raping a 15 year old girl. The appellant was sentenced to 5 years imprisonment. The appellant appealed against his conviction on the grounds of criticism of the conduct of the trial advocate depute, in particular, in relation to the conduct of his cross-examination of the appellant and comments made by him in his closing speech to the jury. It was contended on behalf of the appellant that what the advocate depute said was so prejudicial that he could not receive a fair trial, notwithstanding the specific directions given by the trial judge to the jury to deal with the perceived unfairness. In addition, it was contended on behalf of the appellant that the trial judge erred in repelling a motion on behalf of the appellant, based upon certain questions put to him by the advocate depute, to desert the trial pro loco et tempore. The circumstances were that the complainer gave evidence of the appellant raping her and that during the incident she attempted to contact her friend on her mobile phone and left a message on her friend’s voicemail which recorded the complainer stating “You are raping me” and “K, get off me”. The appellant’s evidence was that whilst he did not have any detailed recollection of the events his general position was that the complainer consented to sexual intercourse and that in relation to the voicemail message the recorded conversation did not take place in his presence. During the course of the cross-examination of the appellant the advocate depute repeatedly stated to the appellant that he was lying, for example, he said “you came here just to lie today to get off the charge of rape, didn’t you?” the appellant replied “No”. The cross-examination continued along this theme with repeated suggestions that the appellant was simply lying and was wanting “to fool the jury” into acquitting him. There was an exchange in relation to the appellant placing his hands down the trousers of the complainer to which it was put to him that “So you sexually assaulted her in that way?” to which the appellant stated he did not sexually assault her, however, the prosecutor then went on to suggest that the appellant stuck his hands down the inside of her trousers towards her crotch area which was denied by the appellant. The prosecutor asked the appellant if he attended a doctor in relation to problems with his memory. The prosecutor agreed with the appellant when he said “you say I’m lying” and that the appellant was saying that the complainer and two other female witnesses were lying. The advocate depute also asked “Do you often have sex with people and just forget about it completely later? – No. I mean will you go out tonight and have sex with somebody?” As a result of that question the solicitor advocate for the appellant objected and the advocate depute indicated that he would withdraw the question, however, the solicitor advocate still wanted to address the court. An invitation was made to the court for the trial judge to desert the trial pro loco et tempore on the basis that the questions were prejudicial to the appellant and constituted an unwarranted attack on his sexual character. The judge considered matters overnight and the following day considered that whilst there had been no objection to the questions by the advocate depute regarding what was described as the sexual assault part there was nothing in the indictment alleging a prior sexual assault on that factual basis, and the trial judge was concerned that the advocate depute’s characterisation could be prejudicial to the appellant. The matter was raised with parties. The trial judge ultimately decided to sustain the objection in relation to the line of cross-examination taken. In relation to the invitation to desert the trial, the judge considered that the appropriate remedy was to give certain directions to the jury to ignore the offending questions and disregard any reference to sexual assaults. In his speech to the jury the advocate depute stated that “as a matter of law there was enough evidence to convict the accused”. There were repeated references by the advocate depute to matters where it was made obvious that he was of the personal opinion that the complainer’s evidence was truthful and that the essential elements of the case “have all been proved beyond reasonable doubt.” No further motion to desert was made on behalf of the appellant following the Crown speech. The trial judge in his charge gave specific directions in relation to a number of the criticisms of the questions/speech of the advocate depute. In particular, it was made clear to the jury that any personal views or opinions expressed by parties should be completely ignored. Here on behalf of the appellant it was submitted that the prejudice to the trial through the conduct of the prosecutor was so severe that no directions could cure the difficulty. It was submitted that, in the event that the court rejected that submission, the trial judge’s directions were sufficient and could not be criticised. On behalf of the Crown it was accepted that some of the comments made in the advocate depute’s speech were inappropriate, however, did not result in any unfairness. In relation to the cross-examination of the appellant it was submitted that there was no issue. The Crown referred to the opinion of Lord Justice Clerk Ross in Sinclair v HMA 1986 JC 113 which stated that no case could be cited where an inappropriate question had resulted in a case being deserted. In relation to the decision not to desert the trial the Crown referred to Fraser v HMA 2014 JC 115 where it was said that considerable weight should be placed on the trial judge’s view of matters and how best to deal with alleged unfairness, whether by ignoring the offending matter rather than give it undue emphasis, or by directing the jury, or by choosing to desert the diet. Here the court refused the appeal, however, the court highlighted and reiterated some fundamental principles to be adhered to by prosecutors in the conduct of trials. Reference was made to the Privvy Council case of Randall v The Queen [2002] 1 WLR 2237. In particular, prosecutors should avoid giving the impression that they have formed a personal opinion of an accused’s guilt and that their role is one of public duty grounded in fairness. The court observed that where there is any inbalance as a result of remarks made by a prosecutor it is for the judge to redress that (Morrison v HMA 2014 JC 74 being an example of a case where the problems created by the procurator fiscal–depute were not rectified by the trial sheriff). Whilst the court recognised that there is a place for putting to a witness that he is being untruthful it should not be done on the basis of a given assumption but, rather, by demonstrating on the evidence how the position given is inconsistent/untruthful. In the present case the court made clear that what occurred fell short of good and proper practice. The court also highlighted concerns in relation to the Crown approach during the appeal hearing as there appeared to be a failure by the Crown to acknowledge that anything untoward had occurred that necessitated clear and direct action by the trial judge in the form of directions. The court went on to state that just as the defence counsel was criticised in the case of Dreghorn, where the cross examination of the complainer began with her being told she was a liar, there were similar issues arising in the present case in relation to the conduct of the Crown. The court described the tone of the cross-examination of the appellant as unpleasant and disrespectful by attempting to diminish the appellant in the eyes of the jury. The advocate depute’s view that both he and the prosecuting authority considered the appellant to be guilty of the charge and that he was a liar was improper. The court considered that, contrary to what the Crown stated at the appeal, the trial judge was correct to decide that action was needed on his part in light of the prosecutor’s conduct. It was accepted on behalf of the appellant that if the court here considered that the trial judge was correct in the view that the difficulties could be addressed by him in his charge to the jury, there was no complaint as to the adequacy of his directions. The court reiterated that the trial judge is generally best placed to consider whether the fairness of a trial had been irredeemably prejudiced or whether other steps may be followed to address with any unfairness. In the present case the court was of the view that the judge’s directions adequately dealt with the unfairness which arose and no miscarriage of justice had occurred.