Sean Barry Moynihan v. Her Majesty’s Advocate [2016] HCJAC 85

Note of appeal against conviction and sentence:- On 29 June 2015, at Glasgow High Court, the appellant was convicted after trial of a charge of rape. The appellant was subsequently made the subject of an Order for Lifelong Restriction with a punishment part fixed at 9 years. The appellant appealed against his conviction and sentence. In relation to the appeal against conviction the issue was whether it was necessary for the judge to specifically direct the jury in relation to the use to which prior statements could be put. At the trial, during the cross-examination of the complainer, prior inconsistent statements had been put to her, however, during the trial judge’s charge no mention was made of the prior statements and the use to which the jury could make of them in assessing the complainer’s evidence. It was submitted on behalf of the appellant that the key issue was that the complainer had previously made statements which differed from her evidence and the absence of directions on the evidential value of these prior inconsistent statements used to challenge the credibility and reliability of the complainer amounted to a misdirection and resulted in a miscarriage of justice. It was submitted on behalf of the appellant that it was a requirement for the trial judge to provide such a direction and it was not simply a matter for the judge’s discretion. It was conceded on behalf of the Crown that the failure by the trial judge to provide a direction in relation to the evidential value of the prior inconsistent statements was a misdirection, however, it was argued that it had not been a material one and did not result in a miscarriage of justice. It was submitted on behalf of the Crown that the elements of the statement that were said to be inconsistent with the parole evidence of the complainer were peripheral to the critical issues in the case. It was further submitted that both the Crown and the defence had fully covered the issue in their respective speeches and the jury had been directed by the trial judge that the jury could only convict the appellant if they accepted the complainer’s evidence as credible and reliable and from the speeches of parties it would have been obvious to the jury that any inconsistencies in the complainer’s account would require to be taken into account in reaching their verdict. In relation to the appeal against sentence the sentencing judge indicated that, had he been imposing a determinate sentence, he would have selected a figure of 17 ½ years. This was due to the appellant’s previous convictions which included inter alia a conviction for rape in 2009 for which he received a 9 year extended sentence with a custodial element of 6 years. From the starting point of 17 ½ years the judge deducted 20%, as representing the protection of the public element, which left 14 years. The judge indicated that he would normally have halved that amount to reach the appropriate punishment part, however, as there was a section 17 order which was not due to expire until December 2019 the judge adjusted the reduction from 7 to 5 years, resulting in a punishment part of 9 years. It was submitted on behalf of the appellant that whilst it was accepted that the criteria for the imposition of an OLR had been met it was contended that the punishment part of 9 years was excessive, and, in particular, the starting point of 17 ½ years was excessive. Here the court allowed the appeal and quashed the punishment part of 9 years. The court selected a starting off point of 15 years and deducted 20% to 12 years and halved that figure resulting in a punishment part of 6 years. The court considered that, in terms of section 2(2)(aa) and (b) of the 1993 Act, the judge was not authorised to take into account the subsequent conviction.