Kevin Guthrie v. Her Majesty’s Advocate [2022] HCJAC 21


Note of appeal against conviction and sentence:- On 16 April 2021, following a trial on indictment at Glasgow Sheriff Court, the appellant was convicted of a charge of penetrative sexual assault contrary to sections 2 and 3 of the Sexual Offences (Scotland) Act 2009. On 14 May 2021 he was sentenced to 3 years imprisonment. The appellant appealed against his conviction it being contended that his legal representation at trial was defective, in particular, that his legal representatives had failed to recognise the significance of the finding of the appellant’s DNA on the complainer’s pants and which ought to have been the subject of greater challenge at trial. In particular, it was contended that the possibility of secondary transfer of the appellant’s DNA from the complainer’s outer clothing onto her underwear as a result of the way the police had packaged all of her clothing in a single bag and then later re-packaged had not been investigated by the appellant’s representatives nor had it been properly challenged before the jury. It was submitted on behalf of the appellant that his trial counsel had failed to identify the potential significance of the packaging of the clothing by the police and to thereafter obtain expert opinion on it resulted in the appellant’s defence not being adequately presented and a material part of the defence had not been placed before the jury resulting in a miscarriage of justice. On behalf of the Crown it was submitted that such an appeal based on defective representation could only succeed if the appellant had not received a fair trial resulting in a miscarriage of justice and not where all that was said was that the defence could have been stronger or a better strategic judgment could have been made. It was submitted that the issue of indirect or secondary transfer had been ventilated at trial, not only during the course of cross-examination of the Crown forensic biologist but also in the defence speech to the jury. Here the appeal was refused. The court reiterated that the basis for a successful defective representation appeal (Anderson v. H.M.A. 1996 J.C. 29) requires that the defence case was not presented to the court which can occur when the accused’s counsel acted contrary to the accused’s instruction or because he was deprived of a fair trial because his defence was not presented to the court. Following a review of a number of authorities the court stated that in the present case, having regard to the totality of the evidence led in the case, it could not be said the trial counsel’s conduct of the defence was such as no competent counsel could reasonably have conducted it. In relation to the appeal against sentence it was submitted on behalf of the appellant that, whilst a custodial sentence was appropriate, the sentencing sheriff had given insufficient weight to the appellant’s personal circumstances, in particular, his good character, his work record and the impact the conviction and sentence would inevitably have on his career. The court agreed with the submissions made on behalf of the appellant and quashed the sentence of 3 years and substituted one of 2 years imprisonment. 

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