High Court refuses permission for appeal against rape convictions over two years after trial

About this case:

• Citation:
  [2023] HCJAC 14
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Robert Garden was convicted in 2021 of various charges of rape and assault against multiple complainers and given an extended sentence of 16 years with a 13-year custodial element. He sought to appeal on the ground of defective representation after his trial counsel refused to lead evidence of Facebook correspondence with one of the complainers.

The application was considered by the Lord Justice General, Lord Carloway, together with Lord Woolman and Lord Matthews. Mackintosh KC appeared for the applicant and CG McKenna, advocate depute, for the Crown.

No material difference

The applicant was first indicted to a preliminary hearing in October 2019 but, due to the pandemic, it was not until February 2021 that the case called for trial. During the trial, the applicant withdrew instructions to his defence counsel. He instructed new counsel in March 2021, whose instructions were also withdrawn at the sentencing diet. In both cases, the withdrawal was due to a failure on the agent’s part to use Facebook material, some of which was said to suggest that some sexual activity with one of the complainers, CD, had been consensual.

A notice of intention to appeal was lodged timeously on the applicant’s behalf, with a Note of Appeal due by 18 June 2021. In the meantime, a solicitor advocate was instructed to provide an opinion, in which he expressed the view that the Facebook messages would not have made a material difference to the case. The appeal was deemed abandoned on 25 June 2021.

On 15 March 2023, the applicant sought an extension of time, explaining that he had been trying to obtain new legal advice. He maintained that, had the Facebook messages been put to CD, they would have caused the jury to doubt her credibility and reliability on her level of intoxication and lack of consent in respect of charge 14, which was essential to providing mutual corroboration for the rape charges.

In opposition to the application, the Crown submitted that the prospect of being able to lead the evidence via a successful section 275 application would have been low. It was difficult to identify any messages specifically relating to the incidents libelled, and several counsels for the applicant had cast doubts on their admissibility.

Fraught with danger

Lord Carloway, delivering the opinion of the court, said of late appeals generally: “There are good reasons for imposing time limits in terms of finality and certainty as integral parts of the justice system. The expeditious disposal of appeals is in the interests not only of appellants, but also victims of crime and the public in general. When the complainers in this case were told of the deemed abandonment of the appeal, they ought to be able to rely on that statement other than, as the statute says, in exceptional circumstances.”

He continued: “As the judge at first instance observed, the fact that the application comes some two years after the jury’s verdict is in itself a powerful factor pointing towards refusal. The applicant has had several changes of agents and counsel, but this does not provide him with some form of advantage. Prior to the expiry of the period for lodging a Note of Appeal in June 2021, the applicant had received an opinion from a solicitor advocate advising that the Facebook material, even if admissible, did not demonstrate a miscarriage of justice.”

Assessing the strength of the applicant’s case, Lord Carloway said: “It was a matter for counsel’s professional judgement whether to lodge or use the [Facebook] material. No doubt some counsel would have attempted to use it, but others would have taken a more cautious view. First, it is not at all clear that the material relates to the particular October incident to which the complainer spoke. Secondly, whether the complainer was accepting in her messages that the sexual intercourse was consensual is dubious. Thirdly, from what the applicant said in his messages, he may have been accepting that it was not consensual.”

He concluded: “It may be that the applicant’s original agent was at fault in not passing on a complete record of the Facebook messages. However, the court is not, for the reasons given, convinced that this amounted to defective representation resulting in a miscarriage of justice. The applicant’s case was put to the jury. The complainers’ testimony was challenged in cross-examination. The applicant gave evidence in support of his defence. The use of the Facebook material was fraught with danger even if the trial judge could have been persuaded to admit the material at such a late stage in the process.”

The application for extension of time was therefore refused.