Rapist fails in ‘fresh evidence appeal’ against conviction

The appellant argued that the evidence, which only came to light after the trial, showed that the complainer and another witness were “not credible and reliable”, but Appeal Court of the High Court of Justiciary ruled that the material would have had no bearing on the outcome of the case and therefore held that there had been “no miscarriage of justice”.

Lord Menzies, Lord Malcolm and Lord Turnbull heard that the appellant “RC” was sentenced to seven years’ imprisonment after being convicted of a charge of rape committed in December 2014, after the jury rejected his defence of consent.

Fresh evidence

In this fresh evidence appeal against conviction, he submitted that the complainer’s social media posts demonstrated that she lied when giving evidence about how the rape had affected her, and the contact she had with another witness “KH” after the incident. It was suggested that KH also lied about the contact she had with the complainer.

The evidence was brought to the attention of the appellant post-conviction and the Crown accepted that the “reasonable explanation” test has been met, thus the issue for the court was whether the material would have raised a “reasonable doubt” in the minds of the members of the jury.

It was stated that at the trial, in response to questioning by the advocate depute the complainer gave evidence that since the appellant’s attack upon her she was: unable to go to work; could not go out with friends; was no longer confident and outgoing; had panic attacks about going out and did not lead a normal life; had very little contact with KH; had not been back to KH’s flat; and was no longer interested in having a relationship or sexual contact with anyone.

Facebook posts

However, various Facebook postings indicated that between the attack on 28 December 2014 and 30 September 2015 the complainer made references to a college course on two occasions; implied that she had been working on six occasions – the first of these being 27 February 2015, some two months after the rape; made references to nights out on eight occasions, and this over a nine month period since the rape; talked of moving house on two occasions; indicated that she had been to KH’s flat, and referred to a night out in the company of KH.

The appeal was based upon the proposition that had this material been available to the defence at the trial, it would have been put to the complainer and the witness in cross-examination, thereby demonstrating that they were neither credible nor reliable witnesses.

The jury would have been asked to take the inconsistency between the evidence in chief and the postings into account when deciding whether to accept the complainer’s account that she had been raped, including whether all of this raised a reasonable doubt as to the appellant’s guilt.

Lockerbie appeal

Having referred to the test for a fresh evidence appeal as set out in the Lockerbie appeal, Al Megrahi v Her Majesty’s Advocate 2002 JC 99, the Dean of Faculty did not submit that the jury would have been bound to acquit if the new evidence had been available at the trial, but that the matter was relevant and of such significance that the verdict was a miscarriage of justice.

In advance of the appeal hearing both the complainer and KH lodged affidavits, in which they explained the inconsistencies.

And for the Crown it was submitted that whether the complainer had been out and about after the rape and how it had affected her, was “neither here nor there” to the key facts which the Crown required to prove in a rape trial.

In any event, it was only at first glance that there was any discrepancy between the complainer’s evidence and the new material. In the overall picture this new material related to “peripheral matters” and would not have had any major bearing on the trial.

It was also argued that the Crown case against the accused was “compelling” and his evidence had been rejected by the jury.

No miscarriage of justice

Delivering the opinion of the court, Lord Malcolm said: “The appeal turns on the application of the principles laid down in Al Megrahi. In particular, is the court satisfied that the new material, had it been available, would have been important evidence of such a kind and quality that it was ‘likely to have had a material bearing on, or a material part to play in the determination by (the jury) of a critical issue at the trial?’

“The evidence must be of such significance that its absence at the original proceedings amounts to a miscarriage of justice. In the view of the court, these tests are not met.

“We consider that any differences and inconsistencies between the evidence at the trial and what can be taken from the postings have been exaggerated, as has their potential significance in the overall context of the issues and evidence at the trial.

“We are wholly unpersuaded that if the complainer and KH had been cross-examined at the trial under reference to the postings, this would have had a material bearing on the outcome of the trial.”

The appellant also appealed against sentence, but having regard to all the relevant circumstances the court did not consider that imprisonment for seven years was “excessive”.