APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Clarke Lady Dorrian	[2010] HCJAC 67 Appeal No: XC487/05 OPINION OF THE COURT delivered by LORD OSBORNE in NOTE OF APPEAL AGAINST CONVICTION by WILLIAM GEMMELL MACKINTOSH Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead; Mackenzie; George Mathers & Co, Aberdeen

Respondent: Ferguson QC AD; Crown Agent

29 June 2010

Background Circumstances

[1] The circumstances of this case have already been described in paragraphs [1] to [9] of the Opinion of this court, delivered on 7 August 2009, and need not be repeated here. Reference is also made to paragraphs [1] and [2] of the Opinion of this court, dated 17 March 2010. The purpose of this Opinion is to deal with such of the grounds of appeal as remain alive and outstanding, other than grounds 5(a) and (b) and 6 in the document entitled Supplementary Grounds of Appeal, number 24 of the appeal process, which have not yet been the subject of a hearing.

The remaining grounds of appeal

[2] As regards the original Note of Appeal, number 1 of the appeal process, grounds 1 and 2, which related to charge 2 in the indictment, have been disposed of. Ground 3 in that document bears to be a ground of appeal related to alleged defective representation in a number of respects which are specified. Of these sub-paragraph (c) has been abandoned. Grounds 3(a) and (b) are in the following terms:

"(a) P. McLean, a crucial defence witness, was not included in a list of witnesses although a statement had been provided by him some months before the trial. His evidence would have been to the effect that he attended the locus during the period of the libel and that the complainer appeared to be present in the house willingly. He would have given evidence that the appellant and complainer had been associating together for some time prior to the alleged rape.

(b) Mobile phone records provided by the appellant were not included as defence productions. As a consequence, they were not put to the complainer in evidence. Such records would have demonstrated telephone contact between the appellant and the complainer up to and including the day before the complainer alleged that she attended the appellant's flat unwillingly, not having previously associated with the appellant.

The failure of the defence solicitor-advocate to introduce all such evidence was a failure to lead a substantial line of evidence supporting the evidence of the appellant. Such evidence was of such a character that it is likely that it would or could have led the jury to conclude that it cast a reasonable doubt on the credibility and reliability of the complainer."

Turning to the document entitled additional grounds of appeal, number 1A of the appeal process, ground 1, save as regards the last sentence, relates to the conviction for rape, which has already been quashed. The last sentence of that ground is in the following terms:

"Lastly no reasonable jury could have concluded that the complainer was abducted or detained against her will for the period specified in the libel."

Ground 2 relates to additional evidence, not heard at the trial, available from a witness, Patricia Belton. This ground of appeal was disposed of by this court in its Opinion delivered on 17 March 2010. Ground 3 in this document is in the following terms:

"3. There was insufficient evidence to establish that the complainer had been abducted. Properly understood there was no corroboration of the complainer's account to that effect. It is recognised that abduction is a crime in its own right. Reference is made to Broulliard v Her Majesty's Advocate 2004 S.C.C.R. 410."

Ground 4 in this document is in the following terms:

"4. In any event the trial judge failed to direct the jury properly on this point. No directions were given to the jury as to the meaning of the crime of abduction. On the contrary the matter was left to the jury on the basis that charge 1 was simply one of assault. Such directions were necessary to ensure that the appellant had a fair trial."

The original Note of Appeal, number 1 of the appeal process, contains a ground of appeal 4. Its terms are unfocused and difficult to follow, but it is evident that it simply repeats certain of the points made in other grounds. Much of the material in it relates to the conviction for rape, which has been quashed. We have been unable to discern anything in that ground which goes beyond what is averred in the other grounds to which we have referred. Indeed, that was ultimately accepted by counsel for the appellant.

The issues now remaining

[3] It will be seen from our narrative of the grounds of appeal that remain alive and undetermined that several of them are focused upon the matter of abduction. As regards the remaining grounds, they are focused on other matters, among other things, the alleged significance of mobile phone records provided by the appellant which were not included among the defence productions.

Submissions of the appellant

[4] It was submitted that the matter of abduction was important in relation to sentence. The appellant submitted that there had to be corroboration of abduction. The Crown's position appeared to be that since the allegation of abduction had been deleted by the trial Advocate depute prior to the closure of the Crown case that what was left was simply a narrative of the circumstances of the assault to which charge (1) related. In this connection reference was made to Brouilliard v Her Majesty's Advocate 2004 S.C.C.R. 410, and particularly paragraph [18]. Counsel contended the removal of the word "abduct" from charge (1) did not eliminate the requirement of corroboration and appropriate directions. The fact that the parties had not approached the matter in that way at the trial did not determine the issue raised. In the end, however, the matter had a limited significance; if the submission were correct, the conviction on charge 1 would require to be quashed and a conviction substituted without the words "detain her at said house against her will".

[5] Turning to the issue of defective representation, it was acknowledged that P. McLean had not been included in the defence list of witnesses. The appellant's original representatives had had their instructions withdrawn, after which fresh representatives came into place. Once again this witness was not included in a list; however the evidence of the witness could have been proffered, despite the fact that his name did not appear on the list. The significance of this witness was that he had come to the locus twice during the course of the weekend, at a time when the complainer was said to have been detained there. The trial judge had refused to allow the evidence of this witness to be led, which had rendered the trial unfair. That decision, it was submitted, was not a discretionary one. In any event, the information given to the trial judge had not been satisfactory. The allowance of the evidence of this witness would not have created any particular problems in the course of the trial. Counsel accepted that the trial judge had not been given a copy of this witness's precognition. While the evidence of the witness did not directly relate to the assault averred in charge (1), it bore upon the complainer's credibility, which itself had to underlie the conviction on that charge.

[6] Counsel went on to deal with the subject of the mobile telephone records referred to in grounds 3(b) and 4 of the original Note of Appeal. The use of the mobile telephone was important, because the complainer denied using it. What the appellant had said about this matter, particularly at the police interview, supported his credibility. It was accepted that the appellant's then solicitor-advocate had decided not to go into this area of the evidence, although the trial judge had indicated that he would have sustained the objection to the introduction of such evidence, had it occurred. In connection with this submission counsel referred to Leverage v Her Majesty's Advocate 2009 SCCR 371, paragraphs [16] to [19]. The situation described might be characterised as defective representation. It was contended that the "defence" had not been presented to the jury; and that the "defence" embraced a very particular attack on the credibility of a single witness. As regards the proper approach to defective representation, reference was made to Woodside v Her Majesty's Advocate 2009 S.C.C.R. 150.

Submissions of the Crown

[7] The Advocate depute submitted that the grounds of appeal relating to abduction were ill-founded. At the closure of the Crown case, reference to abduction in charge (1) was deleted by the trial Advocate depute. Thus the charge remained as an allegation of assault containing the words "detain her against her will". It was made clear to the court that this was not to be treated as a charge of abduction. These words were simply part of the narrative of the assault and had to be treated as such. In that situation there was no need for corroboration of the situation referred to, nor was there a need for specific directions relating to abduction. As regards grounds of appeal 3(a) and (b) and 4 in the original Note of Appeal, there was not a relevant allegation of defective representation. In any event, counsel for the appellant had vacillated between alleging defective representation and apparently criticising the decision of the trial judge. As regards the evidence of P. McLean, which was not led, plainly the court had had a discretion under section 78(4)(b) of the 1995 Act to refuse to allow the evidence of a witness whose name did not appear on the defence list of witnesses to be led. The trial judge took the view that that was a proper course to take. In this connection reference was made to Lowson v His Majesty's Advocate 1943 J.C. 141. In any event, at the time when the motion was made, the witness was not present. His evidence could not have been led then. Had the evidence been allowed to be led, that could have created a need to recall the complainer. The trial judge was not told that the evidence was considered to be crucial. In connection with these submissions, the Advocate depute also referred to Her Majesty's Advocate v Montgomery 1999 S.C.C.R. 959 at pages 968 to 969. Here the trial judge had considered all the relevant circumstances, in so far as they were disclosed to him, and had evaluated the justice of the situation. His decision could not properly be challenged. If the situation were to be looked at as an issue of defective representation, it was submitted that the circumstances did not amount to that here. Reliance was placed on Grant v Her Majesty's Advocate 2006 SCCR 365, paragraphs [21] to [25]. The test was whether or not the appellant's defence had been presented to the court. That plainly had been done. Ground 3(a) of the original Note of Appeal simply did not measure up to the requisite standard for a miscarriage of justice based on defective representation. In any event, as appeared from Miss Ogg's response to the allegations of defective representation, number 16 of the appeal process, the witness had not been cited because it had been decided not to call him. Circumstances such as that could not be erected into an allegation of defective misrepresentation. It appeared that the substance of ground 3(b) in the original Note of Appeal was not now being supported; it was necessary to consider ground 4 in relation to the mobile telephone records. The fact of the matter was that the trial judge had not made a decision or ruling upon the issue of these records, as appeared from the trial judge's report page 13. In any event, it was not clear what significance the contents of the record actually possessed. In all these circumstances these particular grounds of appeal were without merit. The Crown accepted what had been said in Leverage v Her Majesty's Advocate, in paragraph [19]. There was no real possibility that the material concerned would have advanced the case in any way.

Reply by counsel for the appellant

[8] At the request of the court, counsel for the appellant clarified his position in relation to the several grounds of appeal. In relation to the original Note of Appeal grounds 1 and 2 were not in issue, ground 3(b) was departed from. Ground 3(a) had been the subject of submissions to the court. It was still of potential significance. No separate submissions were being made in relation to ground 4 of the original Note of Appeal. As regards the additional grounds of appeal in document 1(A), counsel said that only grounds 3 and 4 remained alive. Submissions had been made on them.

The decision

[9] In the light of the clarification of the appellant's position, finally given at the close of the submissions in the course of this appeal, it is apparent that there are two areas in controversy. The first is the matter of abduction, the focus of grounds 3 and 4 in the additional grounds of appeal 1(A) of the appeal process, and the matter raised in ground 3(a) of the original Note of Appeal. It is of course the case that abduction is a crime in its own right and may relevantly be libelled as such, as appears from Broulliard v Her Majesty's Advocate. In that case the decision in M v Her Majesty's Advocate 1980 S.C.C.R. supp. 250 was approved. However, the amendment which the Crown made to charge 1 plainly indicated that the Crown were not seeking to establish abduction as a separate crime in the present case. That was made clear specifically to the court at the time when the amendment was made. As the trial judge explains in his supplementary report to this court, thereafter both the Crown and defence proceeded upon the basis that what was libelled in charge (1), if proved, simply constituted part of a wider and more serious assault. Against this background, we consider that the grounds of appeal focused upon this aspect of the case are misconceived. After the amendment to charge (1), the words "detain her at said house against her will" must be seen simply as part of the averments of the manner of the commission of the assault to which this charge relates. It appears to us to follow from that state of affairs that, first, corroboration was not required of the matter referred to in that particular passage in the charge and, second, that directions from the trial judge on the crime of abduction were not required. Plainly it was not necessary for the Crown to lead corroborated evidence of every detail of the modus of the commission of the assault, provided that there was corroboration of the essential elements of the crime of assault. In these circumstances, we reject grounds 3 and 4 in the additional grounds of appeal document, number 1A.

[10] Turning to the matter focused in ground 3(a) of the original Note of Appeal, the trial judge deals with the matter of the position of Paul McLean in his original report to this court. He observed that it appeared to be asserted that the appellant had mentioned this witness during the course of a police interview conducted with him, as being one of the persons who he had said had come to his flat during the time that the complainer was present there. He did not do so, as is apparent from the transcripts of the interview. The first mention of McLean, it seems, came in the examination in chief of the appellant. The trial judge narrates that he had gone to bed and his friend Paul McLean had tried to wake him, but could not do so because of the drugs which the appellant said he had taken.

[11] The position of McLean was mentioned again on 14 August 2002 when the trial was to resume following an interruption related to a change of representation. The solicitor-advocate then acting for the appellant moved the court to allow Paul McLean to be called as a witness, although his name did not appear on the defence list of witnesses. It was stated to the court that his name had been omitted from the list of defence witnesses. When the matter was raised before the trial judge, there was discussion as to the extent of the evidence that McLean might give. The attempt to lead the evidence of this witness was resisted by the trial Advocate depute for the reasons set forth in the trial judge's original report at page 15. It appeared from what was said at that time that this potential witness had not been cited and was not present. As the trial judge explains, he took the view that section 78(4)(b) of the 1995 Act gave him a statutory discretion as to the course which should or should not be taken. He observes that, although express reference was not made to Lowson v His Majesty's Advocate, he had in mind the appropriate test which was whether the interests of justice would be better served by the granting of the motion than by refusing it. The position was that the witness was not present at court. Even if he had been found and cited, it would have been necessary for the Crown to have been given an opportunity to precognose him. From the information which the trial judge was given, the only part of his evidence which could be specifically related to the period of time during which the complainer was in the flat was when a Mrs Christine Holmes was already there and the complainer had been injured. Furthermore, if the evidence of this witness were to have been allowed, there was a possibility that the complainer might require to be recalled under section 269(1)(b) of the 1995 Act. For the reasons which the trial judge describes on page 16 of his report he was understandably concerned about that possibility. In all the circumstances he reached the conclusion that the interests of justice would be better served by his refusal of the motion. He records that, at no time, was it suggested to him that McLean was "a crucial defence witness". If that had been the case, it was most surprising that he had not been cited.

[12] Against this background, we are quite unable to say that the trial judge erred in any way in deciding not to allow Paul McLean to be called as a witness. Accordingly, we reject ground of appeal 3(a) in the original Note of Appeal.

[13] In all these circumstances, there remain for consideration only grounds 5(a) and (b) and 6 in the Supplementary Grounds of Appeal document, number 24 of the appeal process. These grounds have not, as yet, been the subject of a hearing.