Man wins ‘fresh evidence appeal’ against conviction for sexual assaulting wife

The Appeal Court of the High Court of Justiciary ruled that there had been a “miscarriage of justice” as the evidence was sufficiently significant to meet the test for a fresh evidence appeal and there was a reasonable explanation of why the additional evidence had not been heard at the trial.

Lord Menzies, Lord Malcolm and Lord Turnbull heard that the appellant Mohammed Razzaq was convicted in February 2016 following a trial in the High Court at Glasgow of a charge which stated that on 16 January 2000 he forced his then wife’s legs apart and penetrated her vagina with his fist whereby she lost consciousness, to her severe injury and to the danger of her life.

The Crown case

The court heard that the appellant and the complainer were married and lived together at the locus of the crime from about 1999, but there had been difficulties in their marriage and they eventually separated in 2012 prior to being divorced.

The Crown relied upon the evidence of the complainer, who told the court that on 16 January 2000 the appellant had been out until the early hours of the morning with friends and returned home intoxicated.

The complainer had waited up for him in the living room and he wanted to have sex but she did not, so without any display of affection he pulled her towards him and then carried out the assault.

She immediately began to bleed very heavily and the next thing she remembered was paramedics taking her to an ambulance.

Deodorant can

The appellant lodged a special defence of consent which he supported in his own evidence, which was that he and the complainer had been at home on the evening of 15 January 2000 having a family dinner with his brother and his partner.

He claimed that after the guests left around 3am he and the complainer engaged in consensual sexual intercourse, after which they experimented with a deodorant can which he inserted inside her vagina.

He said that this was something which they had done previously and that the complainer handed him the can on this particular occasion, but once the can was inserted blood started to come out and he stopped.

He and the complainer thought that she was miscarrying, as they both thought she was pregnant, so he called for an ambulance and explained that she was suffering a miscarriage.

Additional evidence

The appellant was ultimately found guilty by a majority verdict but granted leave to appeal on a ground which stated that there had been a miscarriage of justice on the basis of the existence and significance of evidence which was not heard at his trial, namely the testimony of three of the complainer’s friends.

In summary, it was contended that each of these witnesses could speak to hearing remarks made by the complainer, in the years prior to the trial, to the effect that she had engaged in consensual sexual experimentation with the appellant involving the use of a deodorant can which had resulted in her being injured and requiring hospital treatment, and that these remarks related to the event in question at the trial.

On behalf of the appellant the Dean of Faculty contended that there was a “reasonable explanation” for the additional evidence not being heard at trial, namely that the appellant was “not aware” of the conversations which the complainer had with other women and there were “no reasonable steps” which he could have taken in preparation for trial which would have uncovered the availability of this evidence.

It was argued that the evidence now available was of such significance that the appeal ought to be granted.

On behalf of the Crown, the advocate depute’s principal submission was that the appellant had failed to demonstrate that there was a reasonable explanation of why the additional evidence had not been heard at the trial.

Miscarriage of justice

Delivering the opinion of the court, Lord Turnbull said: “The evidence which is relied upon in the present case is hearsay evidence but it is available from witnesses who claim to have heard the account directly from the complainer.

“It is reasonable to infer that what the witnesses claim to have been told about is the same incident as the complainer gave evidence about in the trial against the appellant. The evidence would therefore be admissible in terms of section 263(4) of the 1995 Act.”

He added: “In light of the content and quality of the evidence to which we have referred, and taking account of the submissions made by the Dean of Faculty, we are persuaded that we should, in having regard to the interests of justice in this particular case, take a broad and flexible approach. In doing so we are prepared to accept that the appellant had no good reason for thinking that the witnesses now relied upon would be able to give the evidence in question.

“We are also persuaded that there were no enquiries which the appellant could reasonably have been expected to have initiated which would have uncovered the additional evidence. We are therefore prepared to accept that he has discharged the onus of providing a reasonable explanation for the failure to call that evidence.

“We are satisfied that within the additional evidence founded upon there is material which a reasonable jury could regard as credible and reliable and as establishing that the complainer made statements concerning the circumstances of the events of 16 January 2000 which were different from the account of events she gave at trial.

“We are persuaded that evidence of this sort would be of significance in the context of what was the critical issue at the trial and that such evidence would have been of material assistance to a reasonable jury in considering that critical issue. Having considered the whole evidence available, as we understand it to be, and applying our own judicial experience, we consider that the impact of the additional evidence is such that it can be said that the verdict reached in ignorance of its existence must be regarded as a miscarriage of justice.”