Belfast man convicted of sexually assaulting teacher in Dumfries loses appeal against conviction
The High Court of Justiciary has upheld on appeal the conviction of a man charged with the sexual assault of a 25-year-old schoolteacher in Dumfries while he was in Scotland to take part in an ice hockey tournament.
Colin Grimason argued that a miscarriage of justice had occurred as a result of defective representation at trial. The complainer was unknown to the appellant until the date of the incident described in the charge.
The appeal was heard by the Lord Justice General, Lord Carloway, sitting with Lord Turnbull and Lord Pentland.
Underwear ripped off
On 27 May 2017, the complainer was on a night out with friends in a nightclub in the centre of Dumfries. She became separated from her group while trying to get a taxi and was approached by the appellant and one of his friends. She walked with them for a while and they spoke to each other.
As they came upon an alleyway, the appellant pushed the complainer against a wall and tried to kiss her. When she told him to stop, he continued to kiss her more forcibly and then pushed her down. This caused the complainer to hit her head and she became unconscious.
When the complainer regained consciousness, she was bleeding from her vagina and from cuts to her knee and elbows. Her underwear had been ripped off, leaving her only wearing the waistband. She was taken to the police station by two of her friends, whom she told she thought she had been raped.
At trial, evidence was led by the Crown of the appellant’s distressed condition following the incident, the findings of a medical examination which took place in the morning of 28 May 2017, and of DNA matching that of the complainer that was found on boxer shorts worn by the appellant and scrapings from his fingernails.
The appellant gave evidence that he and his friend were looking for a food outlet when they came across the complainer. He said that the complainer told him she needed the toilet and had fallen earlier in the evening, and that he had left her in the alleyway while she attempted to relieve herself. He denied pushing her to the ground, removing her underwear and penetrating her with his penis or fingers.
On appeal, the appellant argued that he was defectively represented by his counsel, who had failed to put to the complainer that her recollection of events was wrong and that she was lying. He also submitted that his counsel had bolstered the standing of the complainer as a credible witness in his speech to the jury and had said things in cross examination which formed no part of his instructions.
No instructions at all
The opinion of the court was delivered by Lord Turnbull. Examining the appellant’s complaint that his counsel did not adequately challenge the complainer in cross examination, he said: “Beyond saying that he did not do these things, the appellant gave no instructions at all as to the nature of the defence which he proposed to advance. The complainer was a complete stranger to the appellant, and he had no information about her such as would demonstrate that she was lying, as opposed to, for example, being confused through intoxication or any other reason.”
He continued: “There is, in the opinion of the court, no basis for an assertion that counsel requires to challenge a witness whose evidence is denied by the accused by the use of any particular language. The language to be used in formulating questions and propositions is pre-eminently a tactical matter for the professional judgement of counsel. In the present case, the court agrees with the view expressed by trial counsel that there was no proper basis for accusing the complainer of lying.”
On the purpose of the questions asked by the appellant’s counsel, he said: “It was apparent that counsel was seeking to demonstrate the limitations of the complainer’s recollection and introducing the question of her reliability. He then moved on to examine the nature of certain of her injuries and the circumstances in which the two of them entered the alleyway. Again, he highlighted the limitations of her own recollection and explored other explanations which were consistent with the nature and location of the injuries.”
He continued: “It cannot be said that trial counsel acted contrary to the instructions of the appellant to any material extent and it cannot be said that he did not lay before the court the defence which the appellant wished to put forward. The defence which the appellant wished to put forward was simply that the complainer’s evidence should not be accepted in its essential parts.”
Lord Turnbull concluded: “Nothing which was said during the course of trial counsel’s speech was materially inconsistent with the general nature of the defence instructed. Since it was not the appellant’s defence that the complainer was lying, trial counsel cannot be criticised for declining to attack her credibility. Having heard the appellant’s own evidence the jury can have been in no doubt that he flatly denied sexually assaulting the complainer. Nothing which was said by trial counsel undermined that position or introduced a material risk of confusing the jury about it.”
For these reasons, the appeal was refused.
© Scottish Legal News Ltd 2020