Mohammed Razzaq v. Her Majesty’s Advocate [2017] HCJAC 45

Note of appeal against conviction:- On 5 February 2016, at Glasgow High Court, the appellant was convicted after trial of a charge of assault to severe injury and permanent disfigurement by inter alia penetrating his wife’s vagina with his fist whereby she lost consciousness, committed at an address in Glasgow on 16 January 2000. The appellant appealed against his conviction on the ground that a miscarriage of justice had occurred because of significant evidence which had not been heard at his trial, in particular, the evidence of three witnesses:- Lauren McDonald, Sofia Syed and Kelly Doyanc. The background was that the appellant and the complainer were married and lived together at the locus from 1999. According to the complainer the relationship was characterised by difficulties throughout and the appellant had a number of affairs during the course of their relationship. They separated and became divorced in 2012. The allegation forming the subject matter of the charge was not reported to the police until February 2013 albeit a formal police statement was not given until later after she had moved to Manchester. The appellant had lodged a special defence of consent in relation to the allegation in advance of the trial. It was the complainer’s position that on the night in question she received significant vaginal injuries as a result of a sexual assault by the appellant for which she was treated in hospital. It was the appellant’s position that the injury was as a result of consensual sexual conduct between the appellant and the complainer involving the insertion of a deodorant can into the complainer’s vagina. The only two present at the time of the infliction of the injury were the appellant and the complainer. Expert medical evidence was led at the trial which indicated that a deodorant cannister was capable of having caused the injury, as was a penis and a fist. At the trial evidence was led of entries in the complainer’s medical records relating to a history that appeared to have been given in the ambulance and once the complainer had arrived at the Glasgow Victoria Infirmary in relation to how the complainer had come by her injuries. According to a paramedic the complainer indicated to her that she and her husband had been having sex and that her husband had been penetrating her with a deodorant can and it was the paramedic’s evidence that at no time during her contact with the complainer was she unconscious. This evidence had been elicited under section 263(4) of the Criminal Procedure (Scotland) Act 1995 as the complainer in her evidence denied having said what the paramedic attributed to her and, if she had said it, it was not true. Similar evidence was led from a nurse in the ward at the hospital who had noted in the complainer’s medical records that “Intercourse with partner this am-penetrated (with) deodorant can.” Again the complainer in her evidence denied that any such information could have come from her as she was unconscious and it must have come from the appellant. On the face of it the complainer had made a statement or statements to medical personnel shortly after the event which directly contradicted her account and supported that of the appellant, however, the jury must have disregarded what the complainer was meant to have said to staff and convicted the appellant of the charge. The evidence which the appellant now sought to introduce was that of Lauren McDonald, Sofia Syed and Kelly Doyanc all of whom could speak to hearing remarks made by the complainer, in the years prior to the trial, to the effect that she had engaged in consensual sexual experimentation with the appellant involving the use of a deodorant can which had resulted in her being injured and requiring hospital treatment, and that these remarks related to the event about which the complainer had given evidence at the trial. Here that evidence was led to enable the court to determine whether there was a reasonable explanation for why the evidence was not heard at the trial and, if so, to determine if the appeal ought to be granted. In relation to Lauren McDonald, she recalled an occasion when the complainer told her that she and the appellant were experimenting with an aerosol can which became stuck inside her as a consequence of which she had to go to hospital and get stitches and that the complainer was laughing about it as she told McDonald. McDonald stated that she had moved to work in different places and had spent some time abroad and was unaware of the complaint by the complainer until returning to Scotland in February 2016 by which time the appellant had been convicted. In relation to Sofia Syed, she too had been told by the complainer that the appellant had inserted an aerosol can inside her as a consequence of which she was badly injured and had to go to hospital. Miss Syed had not known that the appellant was facing trial and only learned in 2016 from her father that he had received a prison sentence and her father put Miss Syed in touch with the appellant’s solicitors. In evidence Kelly Doyanc stated that she was told by the complainer that she and her husband had experimented with something and she had ended up in hospital and the complainer had thought it was funny. It was Miss Doyanc’s position that she had not known of the appellant’s trial or of his conviction until later in 2016 after he had been sentenced. The appellant in his evidence stated that he had not known of the comments made by his former wife to any of the witnesses and had not known that other family members had known about the incident with the aerosol can. It was submitted on behalf of the appellant that there was a reasonable explanation for the additional evidence not being heard at trial and that the evidence now available was of such significance that the appeal ought to be granted. On behalf of the Crown, the principal submission was that the appellant had failed to demonstrate that there was a reasonable explanation as to why the additional evidence had not been heard at the trial. It was further submitted that there was an absence of any information from the solicitor or counsel who acted for the appellant at the trial in relation to the nature of the investigations carried out by them in relation to the matter. It was further submitted on behalf of the Crown that there were questions as to the credibility of the evidence given by the three witnesses which cast doubt on whether their evidence was sufficiently significant to meet the test for a fresh evidence appeal. Here, in considering the merits of the appeal, the court proceeded on the assumption that it was likely that the incident the three witnesses had been told about was the same incident which formed the subject matter of the charge which the appellant had been convicted of. As such, the court considered that the evidence would have been admissible in terms of section 263(4) of the Criminal Procedure (Scotland) Act 1995. In relation to the question of whether the conditions of section 106 of the 1995 Act had been met the court considered that the appellant had no good reason to think that the witnesses would have been able to give the evidence in question and there were no reasonable enquiries which the appellant could have previously made which would have uncovered the additional evidence for the trial. Consequently, the court considered that the appellant had discharged the onus of providing a reasonable explanation for the failure to lead the particular evidence. In relation to the significance of the evidence the court referred to the test to be applied as described in Al Megrahi v HMA 2002 SCCR 509, namely, that it was for the appellant to demonstrate that the additional evidence was of such significance that the fact that it was not heard at the original proceedings must be regarded as a miscarriage of justice. Here the court considered that the additional evidence founded upon was material which a reasonable jury could regard as credible and reliable and as establishing that the complainer made statements concerning the circumstances of the events of 16 January 2000 which were different from the account of events she gave at trial. The court considered that such evidence would be of significance in the context of what the critical issue was at the trial, namely, how the complainer came by her injuries, and that such evidence would have been of material assistance to a reasonable jury in considering that critical issue. Here the court, having considered all of the evidence available and applying their collective judicial experience, took the view that the impact of the additional evidence was such that it could be said that the verdict reached in ignorance of the existence of that additional evidence had to be regarded as a miscarriage of justice and the appeal was allowed.