Scottish actor has length of sexual assault sentence reduced by one year

About this case:

• Citation:
  [2022] HCJAC 21
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Kevin Guthrie challenged his conviction and sentence, arguing that his legal representation at trial had been defective in its handling of evidence that had been re-packaged by the police following receipt. In respect of his sentence, he argued that the sentencing sheriff had attached insufficient weight to his character.

The appeal was heard by the Lord Justice General, Lord Carloway, sitting with Lord Pentland and Lord Matthews. Duguid QC and I Paterson, solicitor advocate, appeared for the appellant and Prentice QC for the Crown.

DNA evidence

The appellant was convicted of sexually assaulting complainer FS on 30 September 2017 at an address in Glasgow. The complainer had been out at a bar with a friend and later arranged to meet with SR, who was friends with the appellant. It was the complainer’s belief that her drink had been spiked while she left it unattended at the bar. Upon entering SR’s flat she was put to bed, and thereafter sexually assaulted on two occasions by the appellant.

It was the appellant’s position that he had not sexually assaulted the complainer, and any evidence of his DNA on her clothing was attributable to some form of secondary transfer. He had touched the complainer only to move her into the recovery position to stop her vomiting while lying on her back. On appeal, he argued for defective representation on the basis that the defence had not ordered an investigation into the possibility of cross-contamination of the DNA on the complainer’s clothing within a plastic bag used to take it to the police office.

Counsel for the appellant submitted that the response from the appellant’s trial counsel was at odds with expert studies whereby DNA could be transferred from one surface to another. Re-packaging involved a risk of transfer. The failure to notice the evidence of packaging and to obtain expert advice on it resulted in the appellant’s defence not being properly presented.

It was submitted for the Crown that the appellant had not denied he had received a fair trial. Any failure to explore the issue of cross-contamination would have at best denied him a line in cross-examination. The complainer’s account of events was corroborated by the description of her injuries by the doctor who examined her and by the DNA findings.

In respect of the appeal against sentence it was submitted that the appellant, who maintained his innocence throughout proceedings, posed a low risk of reoffending. Although it was recognised that a custodial sentence was appropriate if convicted, the sheriff had attributed insufficient weight to the appellant’s previous exemplary character, his charity work, and the devastating effect that the sentence would have on his acting career.

Inexplicable crime

Delivering the opinion of the court, Lord Carloway began: “The question for the jury was a stark one. It was whether the complainer was credible and reliable in her account of being sexually assaulted in the flat. If she had been assaulted, the only candidate for that assault on the evidence was the appellant. There was no issue of identification nor was there any possible lack of corroboration.”

On the strategy adopted by the appellant’s trial counsel, he said: “Defending those accused of a crime is not an easy task. Difficult and potentially risky decisions may often have to be taken in the context of a forthcoming or ongoing trial. The pursuit of lines of inquiry, which may take matters closer to the truth, may require very careful consideration. Lines which are casually or determinedly pursued may narrow, and potentially eliminate, the overall defence strategy.”

He continued: “It is not without importance that, in the many months since the verdict was returned and during which several scientists have been called upon for their views, the appellant’s representatives have not sought to have the clothing which was in the bag, and the bag itself, forensically examined despite Dr Stevenson’s earlier suggestions. The court is not persuaded that the pursuit of the line, which the appellant now advances, would have strengthened his case. It may well have weakened it.”

Addressing the appellant’s sentence, Lord Carloway said: “The court agrees with [the appellant’s] submission. The crime committed was a serious one. It is an inexplicable one when set against the appellant’s background. Most important, the appellant’s conviction is likely to end, at least for the foreseeable future, the successful career which he has worked hard to achieve.”

The court therefore quashed the original sentence of three years and substituted one of two years’ imprisonment.