High Court refuses appeal by man convicted of two rapes seeking to lead evidence of complainers’ collusion 

About this case:

• Citation:
  [2022] HCJAC 20
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

The appellant, GC, argued that an affidavit provided by a witness, MB, to his solicitors following his conviction amounted to fresh evidence in terms of the Criminal Procedure (Scotland) Act 1995 that would have had a material bearing on the decision of the jury.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Matthews and Lord Boyd of Duncansby. The appellant was represented by Paterson, solicitor advocate, and the Crown by Prentice QC and McKenzie, solicitor advocate.

Capable of undermining credibility

The appellant was convicted of two charges of rape on 16 March 2021. Evidence was given by both complainers, SM and LC, who were aged 33 and 35 respectively at the time of trial. SM, the appellant’s stepdaughter, spoke to being raped by the appellant while she was aged between 12 and 15. LC, the daughter of SM’s mother’s cousin, gave evidence that she had been groomed by the appellant. Both complainers denied discussing anything to do with the case with each other during cross examination.

Shortly after the trial, a former partner of SM, MB, provided an affidavit to the appellant’s solicitors in which she spoke to having overheard conversations between the two complainers to the effect that they intended to collude in fabricating accusations of sexual conduct against him. MB deponed that, on an occasion in July 2014 while drinking with SM and LC, they had discussed a plan to make false allegations to the police regarding the appellant.

MB failed to appear before the court at an appeal hearing on 16 March 2022 and attempts to trace her before a rescheduled hearing in May 2022 all failed. At the hearing the solicitor advocate for the appellant relied on MB’s provided affidavit and submitted that it amounted to significant evidence that was admissible at common law as capable of undermining the credibility of the complainers. Any inconsistencies in her affidavit were the result of errors made by the solicitor that had originally taken it.

On behalf of the Crown it was submitted that the evidence was not of such materiality as to lead to a miscarriage of justice. The evidence of MB could not be regarded as credible or reliable by a reasonable jury because of inconsistencies in her evidence. Additionally, the evidence did not raise a new issue as both SM and LC had denied discussing their evidence with each other at trial.

Numerous illogicalities

Delivering the opinion of the court, Lady Dorrian observed: “It is plain that there are very considerable differences between the accounts which might be expected of the complainers and that of MB. In addition there are serious discrepancies between MB’s sworn affidavit and the contents of her subsequent police statement, as we have already noted.”

She continued: “As far as the essential matters are concerned, therefore MB’s evidence stands alone and her position now seems to be self contradictory in many respects. The discrepancies raise serious doubts over the credibility and reliability of the affidavit and of MB as a witness. The terms of a sworn affidavit are not lightly to be dismissed as the result of multiple errors by a solicitor, who would be well aware of the importance of the document which he was preparing.”

Noting that it was clear that MB was “deliberately avoiding” her court citation, Lady Dorrian said: “MB’s position is that SM’s motivations were financial, pertaining to an award from the Criminal Injuries Compensation Authority. Were that the case one would have expected her to have made the application long ago, and for evidence thereof to be available.”

She went on to say: “There are also numerous illogicalities within the affidavit. For example, if the allegations were false, and the result of collusion, why were the original complaints made so far apart, in 1999 and 2001? Why would the witnesses even have to collude in 2014, given that they had made statements already? If they determined in 2014 to collude to ‘get’ the appellant, why not contact the police again at that time? It seems that the matter was not revisited until 2018, and, moreover, that LC was annoyed with SM for having made renewed contact with the police.”

Lady Dorrian concluded: “We are satisfied that there is a reasonable explanation why the proposed new evidence was not led at the trial. It is material and, to the extent we have identified, admissible. The real issue is its credibility. For the reasons set out above we are satisfied that no reasonable jury could attach any weight to it in the context of all the other admissible evidence. It could not reasonably be viewed by a jury as either credible or reliable.”

The appeal was therefore refused.