Man convicted of rape fails in ‘fresh evidence’ appeal despite complainer’s retraction

The High Court of Justiciary Appeal Court ruled that, while the evidence was potentially significant when viewed in isolation, it would not have had a “material bearing” on the jury’s verdict when considered in the entire context of the trial and other prior inconsistent statements which had been used to attack the complainer’s credibility.

Background

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Turnbull, heard that the appellant “NI” was convicted following a trial at the High Court in Edinburgh in April 2017 of charges of indecent or sexual assault on four complainers, including the repeated rape of his partner “CJI” (charge 6).

The Crown relied on the doctrine of mutual corroboration for a sufficiency of evidence.

In evidence CJI had asserted that her two children with NI, “L” and “B”, were both the product of rape.

She admitted that she had lied to the police, having falsely maintained that NI had sent her threatening messages and an email when she had bought a second mobile and used it to send the messages herself.

She was cross-examined about other untrue information she had supplied in her statement to the police and, consistent with the appellant’s position it was suggested to her that all sexual activity with him had been consensual, but this she denied.

‘Fresh evidence’

Following his conviction the appellant appealed on the basis that there was a miscarriage of justice, there being fresh evidence which “would have significantly impacted upon the credibility of the complainer”.

The first source came from a witness “KHR”, a friend of CJI who referred to a conversation in which the complainer described an instance of consensual sexual intercourse between herself and NI as the occasion of the conception of B, NI having been unaware of this conversation until KHR contacted his solicitor during the trial when the jury had already retired to consider their verdict.

The second piece of fresh evidence which it was argued would have significantly impacted on the CJI’s credibility was a message left by the complainer on a Police Service of Scotland internet contact system, which read: “My name is [CJI] and I am going to end my life tonight as I can no longer love [sic] with the knowledge that I helped put an innocent man in the jail for 10 years for something that he didn’t do as everything that I said in court about him was lies and I can’t live with myself for doing that to him”.

It was submitted that the reasonable explanation for KHR’s evidence not being heard at trial was that the appellant had been “entirely unaware” of the conversation until KHR contacted his solicitor towards the end of the trial once the jury had retired.

If the jury had KHR’s evidence it would have been entitled to infer that the sexual intercourse leading to the conception of B had been consensual, or at least been in reasonable doubt as to the matter, leading to acquittal.

Further, the message left by CJI with the police after the trial “significantly undermined” the credibility and reliability of the complainer’s evidence.

It was argued that the “cumulative effect” of the fresh evidence would have been to have left the jury with no doubt that the complainer was untruthful in respect of material parts of her evidence.

‘No miscarriage of justice’

The court expressed surprise that KHR had not been identified as a potential witness, but the judges said they had some sympathy with the appellant’s position that his legal team had no reason to think that KHR could assist with his defence.

However, the court was not persuaded that KHR’s evidence was capable of being regarded as credible and reliable by a reasonable jury, as there were a “significant number of inconsistencies” in her evidence concerning issues of materiality which contradicted her affidavits.

“Her evidence on the circumstances which led to her providing her recollection of the conversation with the complainer’s solicitors was a notable example,” Lady Dorrian said, adding: “In totality her evidence on the circumstances which had led to the conversation between her and the complainer was also fluid and inconsistent.”

In relation to CJI’s message to the police, the judges were of the view that, standing on its own, it would be “capable of being regarded as credible and reliable by a reasonable jury”, but in a fresh evidence appeal it was “crucial to view any additional material relied upon in the context of the whole evidence laid before the jury in the original proceedings”.

Delivering the opinion of the court, the Lord Justice Clerk said: “When reviewed in isolation and without reference to the complainer’s evidence on why it was sent and other matters covered at trial then it had the potential to be seen as a matter of significance. When considered within the entire context of the trial that is not the case.

“We are of the view that it pales in significance to other inconsistent statements made by the complainer and the other material used to attack her credibility at the trial. It is clear from the transcripts that the appellant had a considerable amount of material to attack the complainer’s credibility at trial.

“The material included other prior inconsistent statements given by the complainer… These statements related to and were in stark contrast to and inconsistent with the terms of the conduct libelled against the appellant.”

The jury had also heard about a number of allegations CJI had made against NI prior to trial, including threats to her life and general safety, which related to the messages she had herself sent from the second mobile; at trial she had explained this was due in part to her fear of NI.

Lady Dorrian concluded: “Notwithstanding the seriousness of this conduct and the extent of the prior inconsistent statements made to the police the jury held the complainer to be credible and found the appellant guilty of the charges which concerned the complainer. Charge 6 was a unanimous verdict.

“In our view the message accordingly pales in significance to this other significant and potentially credibility challenging material. Accordingly we are unable to conclude that the message is a piece of evidence of such significance that the verdict reached by the jury in ignorance of it was a miscarriage of justice.”