Thomas Byrne v. Her Majesty’s Advocate [2015] HCJAC 108

Note of appeal against conviction:- On 24 February 2014, at Glasgow High Court, the appellant was convicted after trial of a charge of attempted rape committed back around 1979. At the trial evidence was led from the complainer and from her friend SG. The complainer, who was 48 years of age by the time of the trial, spoke to an incident when she was 13 when the appellant climbed into a bed she had been sharing with SG and to the appellant behaving in the manner libelled. The complainer stated that she climbed over SG to put her between herself and the appellant. After the incident she did not tell anyone about what happened and she and SG drifted apart until they met through Friends Reunited in 2009 when they discussed what had happened back in 1979. SG gave evidence at the trial when she was 46 years of age. She spoke to an incident when she was aged 12 and to the appellant being beside the complainer and her in bed and to there being movements and noises from the appellant which gave SG the impression of sexual activity taking place. SG also spoke to the complainer saying “no”. SG could not recall ever being beside the appellant in bed during the course of the night. After that night SG states that she did not have much to do with the complainer again until they met up again in 2009. At the close of the Crown case there was a ‘no case to answer’ submission on the part of the appellant but it was repelled and the appellant as subsequently convicted. The appellant appealed against his conviction on the grounds that:- (1) the trial judge had erred in rejecting the submission, which had been based on a lack of conjunction of testimony; and (2) the verdict was one which no reasonable jury, properly directed, could have reached, albeit it was conceded the test for such an appeal was a high one. It was submitted here on behalf of the appellant that there was a lack of conjunction of evidence, in particular the various discrepancies between the evidence of the complainer and SG, which meant that there was no corroboration of the complainer’s account. On behalf of the Crown it was submitted that the trial judge had been correct to hold that there was a sufficiency of evidence notwithstanding that there were differences between the witnesses’ accounts and that it was a matter for the jury to determine whether corroboration of the complainer’s account could be found in SG’s evidence. Here the court refused the appeal in light of the totality of the evidence which provided sufficient evidence. The court observed that any discrepancies between the complainer’s account and SG’s account were understandable in the context of an allegation relating to events 30 years ago. In addition, the court pointed to there being an eye-witness to the events, other than the complainer, which was unusual in this type of case. The court pointed to, not only the coinciding description of events in the bed, but also to the background circumstances, for example, the complainer being at SG’s house for a sleepover and the room having a double bed which was pushed up against the wall.