S.G. v. Her Majesty’s Advocate [2019] HCJAC 68

Note of appeal against conviction:- The appellant was convicted after trial at the high court of a number of charges including two charges of assault on his ex-partner:- (1) assault to injury in January 2018; and (2) assault to severe injury and permanent disfigurement, which also included a rape on 25 February 2018. The appellant appealed against his conviction for the rape element of the second charge it being contended that no reasonable jury properly directed could have convicted the appellant of rape. It was conceded on behalf of the appellant that there was a sufficiency of evidence and, as such, having regard to Harris v HMA 2012 SCCR 234, it was recognised an appeal on that basis will succeed only in exceptional circumstances. It was acknowledged that the test was a high one, namely, whether no reasonable jury properly directed could have returned the verdict in question. It was submitted on behalf of the appellant that the complainer’s evidence was of such poor quality, when looked at objectively, that no reasonable jury could have convicted on the charge of rape. Reference was made to the trial judge’s report to the court in which he had stated that the complainer’s evidence of the abduction was evidence which no reasonable jury could have accepted. There were a number of areas of evidence which cast doubt on the complainer’s credibility:- (1)  Her position that she had ended her relationship with the appellant prior to the alleged offence were contradicted by the evidence including phone records on the night in question; (2) The complainer’s evidence as to the means by which she claimed to have been overpowered by the appellant and taken to his flat was contradicted by various sources of evidence including available CCTV footage and the evidence of the appellant’s neighbour; (3) Her evidence that the rape took place on the bed following a violent violently assault resulting in her bleeding was contradicted by the forensic evidence; and (4) Her evidence that the appellant had threatened her from prison was contradicted by agreed evidence and her withdrawal of evidence of another attack by the appellant following a VIPER parade was agreed by joint minute between the parties. On behalf of the Crown it was submitted that the issues raised in relation to the complainer’s credibility were peripheral to the main issue of whether she had been raped and her position in relation to that had been consistent and it was not unreasonable for the jury to accept the complainer as credible and reliable on that central issue. In addition, the appellant did not give evidence or state a position at police interview as to the allegation so no other position other than a denial of intercourse was before the jury. Here the court refused the appeal. The court pointed to one of the main difficulties facing the appellant in the appeal, namely, the concession that the jury were entitled find the complainer a credible and reliable witness in relation to the physical assault to severe injury and permanent disfigurement which the complainer said occurred during the same incident as the rape. As such it was difficult to argue that the complainer’s evidence was fatally undermined in one respect but not in another. The court pointed to other available evidence in the form of significant quantities of blood in the flat and the physical injuries to the complainer, there was also corroboration of the rape, there was forensic evidence of recent intercourse and there was recently exhibited distress. The court considered that there were aspects of the evidence which supported the complainer’s credibility along with other aspects of the evidence which challenged it. The court stated that it is for a jury to assess the appropriate weight to attach to the different pieces of evidence and it will only be where no reasonable jury properly directed could have returned the verdict in question that such an appeal will succeed. The court considered that this was not such an exceptional case. In a Postcript to the court’s opinion two matters were commented on:- (1) the court raised concerns about trial judges ensuring that they familiarise themselves with the contents of any section 275 applications granted in advance of the trial; and (2) the court raised concerns about the frequency and extent of judicial intervention during the course of the cross-examination of the complainer by the solicitor-advocate representing the appellant. The court referred to the opinion of the Lord Justice Clerk in the case of Ernest Livingstone v HMA, 22 March 1974,  approved in Tallis v HMA 1982 SCCR 9, which related to judicial intervention during the evidence of an accused but the court noted here that the guidance should have similar application during the evidence of a complainer.