Man convicted of two rapes who broke down during cross-examination loses appeal against conviction

About this case:

• Citation:
  [2024] HCJAC 45
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Appellant Daniel Robertson argued he had been unable to properly complete his testimony, and as a result the jury could have drawn adverse inferences about his credibility and reliability.  He was sentenced to seven years’ imprisonment for the rape of complainers MM and AF.

The appeal was heard by the Lord Justice General, Lord Carloway, with Lord Doherty and Lord Matthews. MF Guarino, solicitor advocate, appeared for the appellant and Gill KC, advocate depute, for the Crown.

Low intellectual capacity

At a preliminary hearing in May 2023, counsel for the appellant tendered a plea of not guilty and said the complainer was ready for trial. On 15 January 2024, the jury was balloted. The following day, the recently instructed solicitor advocate for the appellant said he had concerns about the appellant’s fitness for trial. A written report was produced by Professor Gary MacPherson stating that, while he was fit for trial, the appellant had low intellectual capacity necessitating the use of simple language and short breaks.

In his evidence, the appellant said that he had not had sex with MM on the date libelled and that the sex with AF was consensual. After being asked a series of questions in cross-examination about the first charge, he crouched down in the witness box and started crying. During questioning about the second charge, he answered “no” when the trial judge asked him if he felt able to continue, sat down, and put his head in his hands. The judge’s view was that the appellant was unable to respond to questions which were difficult in the sense that the answers he would give would implicate him.

On 22 January 2024, counsel for the appellant moved to desert the diet after the appellant began answering “no comment” to every question he was asked. Professor MacPherson was asked to examine the appellant again but did not find any differences from the first examination. The solicitor advocate addressed the jury on the basis that the appellant was a very vulnerable individual who adopted “childlike strategies” when placed under stress.

It was submitted for the appellant that the appellant should have been allowed to compose himself and finish his evidence. His counsel noted he had come into the case late and he had been “astonished” at Professor MacPherson’s conclusion on fitness. The Crown maintained that adjournment was a matter for the judge and that desertion was a last resort where unfairness was so material that nothing other than abandonment could cure it.

No satisfactory answer

Lord Carloway, delivering the opinion of the court, called the manner of the trial’s progression “extremely disappointing”, and explained: “A change in the accused’s counsel or solicitor advocate at or about the time of the trial diet is not a sound basis for re-setting the clock whereby the new legal representative is entitled to review matters, which should have long since been dealt with, and to lodge applications as if the PH had never taken place. Although there will be exceptions, where the interests of justice so require, any new representative must have regard to what has occurred prior to his or her involvement and to the duty which is owed to the court in assisting the progress of the trial.”

He added: “Although it may have remained open to the appellant to seek a report on his mental state, that ought not to have delayed the progress of the trial unless and until evidence of unfitness became available. In that context, the trial judge was highly indulgent to the appellant in permitting an adjournment pending Prof MacPherson’s views.”

Assessing the manner in which the appellant’s evidence was given for signs of unfairness, Lord Carloway said: “It is important to note that at no time did the appellant seek any special measures to assist him in giving evidence. Had such measures been sought, the judge could have considered and ruled upon any measures requested. It is not normally for the judge to carry out an examination of an accused’s, or a witness’s, vulnerability in the abstract and without an application from a party.”

He went on to say: “When the appellant said that he was unable to continue, the trial judge adjourned the trial over the weekend. Contrary to the solicitor advocate’s submission about the appellant having a psychiatric breakdown and acting in accordance with what might be expected of a vulnerable person, the judge considered that his failure to answer the question was because, put shortly, he had no satisfactory answer.”

Lord Carloway concluded: “Care must be taken to ensure that the basis for any objection is soundly based, especially if a party attempts to state it in the presence of the jury. The long-standing tradition of mutual trust and courtesy between bench and bar should be maintained at all times. As requested by Prof MacPherson, the appellant had been afforded multiple breaks in order, as the solicitor advocate put it, to compose himself. The trial judge is best placed to assess whether some form of irretrievable unfairness has occurred. There was no material upon which to conclude that this occurred in this trial.”

The appeal was therefore refused.