Robert Garden v. His Majesty’s Advocate [2023] HCJAC 14

Application for an extension of time under section 111(2) of the Criminal Procedure (Scotland) Act 1995:- Here the applicant marked an appeal almost two years after the conclusion of the trial. The court reiterated that for the grant of an extension of time there requires to be exceptional circumstances. The circumstances were that the applicant was convicted of various charges relating to two former partners including inter alia two charges of rape. The Crown relied upon the application of the doctrine of mutual corroboration in relation to the rape charges. In the absence of a Note of Appeal, the appeal was deemed abandoned on 25 June 2021. Subsequently, the applicant sought to revive the appeal against conviction. A note of appeal containing a ground alleging defective representation by the original defence agents in relation to certain Facebook material that was lodged. The Crown opposed the application on account of the lateness of the appeal. Further, it was submitted that, whilst some of the messages referred to could be construed as helpful to the applicant, others were not. Further, there were issues regarding admissibility, in particular, many of the messages referred to evidence of a general consensual relationship and many of them were either collateral or inadmissible. It was submitted that it was understandable that counsel originally instructed considered that it was unlikely a section 275 application would be granted. Here the court refused the application.The court reiterated that it is necessary for any such applicant to demonstrate exceptional circumstances before the court will entertain a late appeal. Consideration of that will relate to :- (a) the circumstances that led to the lateness; and (b) in the present case whether the decision of the applicant’s counsel not to lodge/use the facebook material amounted to defective representation, a high test. Here the court refused the application for an extension of time to lodge the note of appeal in relation to both aspects of the test. Firstly, the critical time in relation to the potential use of the Facebook material was by the Preliminary Hearing on 5 November 2020 and, secondly, that there were good and valid reasons why counsel would not have sought to use the material now referred to.