R.C. v. Her Majesty’s Advocate [2017] HCJAC 61

Note of appeal against conviction and sentence:- The appellant went to trial at the High Court in relation to a charge of rape and relied on a special defence of consent. The appellant was convicted by the jury of the charge. The appellant was sentenced to 7 years imprisonment. The appellant appealed against his conviction and sentence. The appeal against conviction concerned fresh evidence which had not been available to the defence at the trial relating to social media posts by the complainer which tended to show that she had lied in her evidence about how the rape had affected her and the contact she had with a witness, KH, following the incident and lies by KH about contact she had with the complainer. The thrust of the submission on behalf of the appellant was that had the material been available at the trial the complainer would have been cross-examined to establish that the complainer was neither credible nor reliable and as a result a miscarriage of justice had occurred. The circumstances were that at the trial the complainer gave evidence that as a consequence of the rape was unable to go to work, no longer went out with friends and suffered panic attacks about going out, was no longer confident and outgoing, had little contact with KH, had not been back to KH’s flat and was no longer interested in having a sexual relationship with anyone. There was no basis within the statements disclosed to the defence prior to the trial to suggest that what the complainer said was not true. However, following the trial the appellant’s brother obtained a series of social media posts made by the complainer and KH which demonstrated that the complainer and KHs’ evidence were untrue in material respects. For example, the messages indicated that following the alleged rape she had been out working repeatedly and repeatedly made reference to nights out and referred to being in KH’s home and having a night out with KH. It was submitted on behalf of the appellant that had the information been available to the defence then the complainer would have been cross-examined about the impact of the alleged rape on her and the apparent inconsistencies. On behalf of the Crown it was accepted that the reasonable explanation test has been met. Here affidavits of the complainer and KH were received by the court in advance of the appeal hearing and at the hearing itself both the complainer and KH gave evidence and were cross-examined on behalf of the appellant. The complainer conceded that her reference to going back to work for a short time was misleading and that it was not accurate to say that she had not been able to go out and socialise with friends. She was adamant that she had not deliberately lied or sought to mislead the court. In relation to KH she stated that the concert which she had gone to had simply slipped her mind and she was not deliberately trying to hide anything. On behalf of the appellant it was submitted that the propositions outlined in Al Megrahi v HMA 2002 JC 99 at paragraph 219 applied. It was submitted that the fresh evidence was material that a reasonable jury would have found of material assistance when considering its verdict and was of such significance and relevance that the verdict amounted to a miscarriage of justice. It was submitted that the credibility of the complainer was the central issue at trial and the fresh evidence, and the absence of a good explanation for her earlier contradictory evidence at trial, was significant. In relation to the appeal against sentence it was submitted that the sentence of 7 years was excessive and the trial judge’s characterisation of the offence was inconsistent with the evidence led. On behalf of the Crown it was submitted that no such miscarriage of justice had occurred and the fresh evidence was peripheral and would not have had any major bearing on the trial and the verdict of the jury. It was submitted that the Crown case had been compelling and the appellant’s evidence had been rejected by the jury. Here the court refused the appeal against conviction and sentence. The court applied the principles at paragraph 219 of Al Megrahi whether the new material, if had it been available at the trial would have been such a kind and quality that it was 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. The court considered that it was unlikely that reference to the social media postings would have had any material bearing on the complainer’s credibility in relation to her evidence about the rape and that the inconsistencies founded upon, between the complainer’s evidence at the trial and the content of the social media postings, were exaggerated. The court also refused the appeal against sentence and stated that it could not be said to be excessive.