COLIN GRIMASON AGAINST HER MAJESTY’S ADVOCATE [2020] ScotHC HCJAC_53 (17 November 2020)
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2020] HCJAC 53
HCA/2018/441/XC
Lord Justice General
Lord Turnbull
Lord Pentland
OPINION OF THE COURT
delivered by LORD TURNBULL
in
APPEAL AGAINST CONVICTION
by
COLIN GRIMASON
against
HER MAJESTY’S ADVOCATE
Appellant
Respondent
Appellant: CM Mitchell QC; Faculty Appeals Unit (for Robert Kerr Partnership)
Respondent: Prentice QC (Sol Adv) AD; the Crown Agent
17 November 2020
[1] On 18 June 2018 the appellant was convicted, by unanimous verdict, of an appalling
sexual assault perpetrated on a 25 year old school teacher who was a stranger to him. In this
appeal he contends that a miscarriage of justice has resulted as a consequence of defective
representation at his trial.
[2] The charge of which the appellant was convicted was as follows:
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“On 28 May 2017 at an alleyway near to Munches Street and High Street, both
Dumfries, you did sexually assault EC in that you did seize hold of her, pull her into
said alleyway, pin her against a wall, kiss her on the mouth, insert your tongue into
her mouth, push her to the ground, cause her head to strike the ground, hold her
down, put your hands around her neck and compress same, cause her to lose
consciousness, all to her injury and to the danger of her life, rip her pants, and did
sexually penetrate her vagina in that you did penetrate her vagina with your penis
and fingers: Contrary to Sections 2 and 3 of the Sexual Offences (Scotland) Act 2009.”
Background
[3] In May 2017 the complainer was living in Glasgow. She had completed a
probationary year as a teacher at a school in Dumfries and had travelled back there to spend
the weekend with friends she had made whilst working there. On the evening of Saturday
27 May the complainer and a group of female friends went out for the evening in Dumfries,
ending up at a nightclub in the town centre called the Venue. During the course of the
evening the group met various other friends and associates. The complainer and some
others left the nightclub together at closing time, around 3.00am. As she understood it, they
were generally making their way towards her friend’s home and expecting to get a taxi. She
became separated from the group she had left the nightclub with.
The complainer’s evidence
[4] The complainer testified that she was approached by a man with a Northern Irish
accent. This transpired to be the appellant. Initially one of his friends was present as well.
They walked in generally the same direction and were talking to each other. As they came
upon an alleyway the appellant took her wrist and pulled her into it, pushed her up against
the wall and started to kiss her. At first she laughed at this but told him to stop as she was
not interested. When he did not do so and began to kiss her more forcibly she realised
something horrible was happening. He pushed her down causing her to hit her head and to
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lapse into unconsciousness. She came round with him on top of her. When she tried to
shout for help he grabbed her by the throat and started strangling her. The complainer
thought that she was going to die but then heard voices in the distance, at which the
appellant let go of her, said “Fuck it”, and ran off out of the other end of the alleyway.
[5] The complainer managed to get up and make her way out of the alleyway, leaving a
number of her possessions behind. She immediately came upon two of her friends who
came to her aid. She was bleeding from cuts to her knee and to her elbows. Her hands were
covered in blood and she was bleeding from her vagina. She thought that she did not have
her underwear on but it transpired that her underpants had been ripped off, leaving her
only wearing the waistband. The remaining part was later discovered in the alleyway. Her
friends took her to the police station.
Supporting evidence
[6] The Crown led evidence of the appellant’s distressed condition on emerging from
the alleyway. She told her friends she thought she had been raped. The contents of her
clutch bag were found strewn about on the ground in the alleyway. Evidence was led of the
findings of a medical examination which took place later in the morning of Sunday 28 May.
An area of petechiae and erythema was noted on her right cheek, the petechiae being
consistent with strangulation. Two linear abrasions were noted to her upper back and
multiple small grazes or abrasions were noted on the right elbow area. Further abrasions
were noted to her right knee and to her right thumb. All of these were consistent with being
pushed to the ground.
[7] In addition, two fresh linear abrasions were noted on the inner labia minora which
had been visibly bleeding and three small abrasions were noted in the area of the posterior
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fourchette. These were described as being consistent with digital or penile penetration, or a
combination of both.
[8] DNA matching that of the complainer was found on the boxer shorts worn by the
appellant and in scrapings taken from his fingernails. These findings were capable of being
explained by penile and digital penetration of the complainer. CCTV footage recovered
from Dumfries town centre showed the appellant running out of the alleyway and back to
the hotel where he was staying.
The appellant’s evidence
[9] The appellant was 26 years old at the date of the trial. He worked as a retained
firefighter and had his own car bodywork and repair business. He had travelled from his
home in Belfast to Dumfries on the weekend of 26 May to compete in an ice hockey
tournament. On the Saturday evening he and a number of his teammates went out for a
drink in Dumfries town centre. He and his friend Daniel McCall went on to the Venue
nightclub afterwards.
[10] The appellant testified that after leaving the nightclub he and Daniel walked around
in the area nearby looking for a fast food outlet which might be open. His evidence was that
the complainer approached them explaining that she had lost her friends. She appeared to
be annoyed about this. She told them she was needing the toilet and asked if they were
going to a party. He explained that he and Daniel spent a little time with the complainer
trying to help her find her friends, during the course of which they walked back towards the
Venue nightclub. As they did so he and the complainer kissed two or three times and there
was general flirting between them. Daniel decided to head back to their hotel leaving the
appellant and the complainer alone. During the course of the discussion the complainer told
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the appellant that she had fallen that evening but he was not able to see any injuries as he
could not see her knees on account of the length of her skirt.
[11] As they reached the area of the alleyway it was the complainer who suggested that
they should cut through that route as it would take them back to Dumfries High Street
where she thought her friends might be. He denied grabbing her by the wrist and pulling
her. In the alleyway he kissed her again and then she told him she needed to go to the toilet.
She said she thought she could hear her friends, to which he responded that if she was
certain that was them he would leave her there and try to catch up with Daniel. He left and
as he did so he could see that she appeared to be crouching down, apparently in order to do
the toilet. He then made his way back to his hotel and joined his companions. They were all
woken in the morning by the police and he was taken into custody.
[12] The complainer’s evidence was put to the appellant. He denied pushing her to the
ground, he denied causing her head to strike the ground, he denied holding her down, he
denied putting his hands around her neck, he denied removing her underwear or having his
hands anywhere in her genital region, other than touching her over the top of her skirt when
they were kissing. He could not explain how her underpants came to have been destroyed.
He denied penetrating her vagina, either with his penis or with his fingers.
[13] In cross-examination the appellant agreed with the proposition that the complainer
must have been lying in saying that he took her wrist and pulled her into the alleyway. He
could offer no explanation for any of her injuries but denied using any force against her. He
speculated that she may have fallen over after he left her. He agreed with the advocate
depute’s proposition that, as far as he was concerned, the complainer’s account of receiving
her injuries was a pack of wicked lies. He reiterated that he did not harm her in any way.
He reiterated that he had no explanation for the injuries to the area of her vagina.
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The note of appeal
[14] The note of appeal makes the overarching complaint that the appellant was
defectively represented by his counsel, resulting in an unfair trial and a miscarriage of
justice. The specific complaints identified concern the cross-examination of the complainer
and the approach taken by counsel in his speech to the jury.
[15] The first proposition in the note of appeal is that counsel for the appellant failed to
put to the complainer that she was wrong and lying in her recollection that she had been
grabbed, pulled down and strangled by the appellant.
[16] The second proposition is that the tenor of a particular passage of counsel’s cross-
examination was to the effect that the appellant may have engaged in an event which he
understood was consensual, whilst his judgement was affected by alcohol, and that he
ceased when he appreciated that the complainer was frightened, or when he realised that his
behaviour might be viewed as inappropriate by others. It is said that this line formed no
part of the appellant’s instructions.
[17] The third proposition is that in his speech to the jury counsel bolstered the standing
of the complainer as a credible witness and restricted his criticisms of her evidence to a
suggestion that she may have been unreliable. It is said that this submission failed to
address or to acknowledge the direct conflict between the complainer’s evidence and that of
the appellant as to whether he continued kissing her after she made it clear that she did not
want to do so and then pushed her to the ground and choked her.
[18] The effect of the cross-examination as identified, and the tenor of counsel’s speech, is
said to be not in accordance with the appellant’s instructions and outwith the scope of any
legitimate tactical discretion available. It is said that the contents of the cross-examination of
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the complainer and the speech to the jury were likely to have reflected adversely upon the
appellant and his evidence in the minds of the jurors.
Submissions
Appellant
[19] In her submissions on the appellant’s behalf, Ms Mitchell QC drew attention to the
content of the precognition taken from the appellant which was recovered from the case
papers. The relevant passage was in these terms:
“We basically had a bit of a carry on in the alleyway. I accepted that I kissed her on
the mouth. I probably put my tongue in her mouth. I did not push her to the
ground. I do not remember her head striking the ground I did not hold her down, I
did not put my hands around her neck or compress her neck. I did not rip her pants
and I did not penetrate her vagina with my penis or fingers or, for that matter, with
anything. As far as I am concerned I thought that she was up for a one night stand
and as soon as she started showing more interest in finding her friends again I just
thought ‘Fuck this’ and headed back to the hotel.”
A special defence of consent, limited to kissing the complainer and putting his hand on the
outside of her vagina but not penetrating her in any way, was lodged in advance of trial.
Counsel submitted that the appellant’s evidence had been consistent, both with the
precognition and with the special defence.
[20] Attention was drawn to the terms of the letter responding to the note of appeal from
trial counsel. In that letter he explained that he did not consider that he had a sound basis
upon which to accuse the complainer of lying but that he did challenge the Crown case
against the appellant in his cross-examination of the complainer. He explained:
“In my cross-examination of the complainer, I was seeking to navigate the fixed
points of evidence on the basis that the two conflicting accounts were irreconcilable
and collectively amounted to misadventure and misunderstanding rather than
malfeasance.”
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[21] Ms Mitchell submitted that it was obvious from the terms of this letter that trial
counsel had appreciated that there were two conflicting accounts. The appellant’s position
was that he had not carried out the sexual assault which left the complainer injured. The
propositions put to the complainer did not reflect the appellant’s defence. There was no
sense in which his instructions accommodated the suggestion that he had behaved
inappropriately whilst his senses were dulled by drink and had only stopped when he
appreciated this. The appellant’s defence, as conveyed in his instructions, and the
complainer’s account in evidence, could not have been, and should not have been, sought to
be reconciled by defence counsel. Reliance was placed on what had been said by the Lord
Justice General (Hope) in delivering the opinion of the court in the case of Anderson v HM
“Just as counsel may not tender a plea of guilty unless he has instructions to do so on
his client’s behalf, so also he may not conduct a defence for a client who pleads not
guilty which is contrary to the instructions which he has received as to the basic
nature of it. His duty is to act on the instructions which he has been given. How he
acts on those instructions is a matter for him, as he is entitled to exercise his own
discretion and judgement in the conduct of the defence. What he cannot do is
deprive his client of his intended defence by acting contrary to his instructions in this
matter.”
[21] It was submitted that in the present case the “basic nature” of the appellant’s defence
was not misadventure and misunderstanding. It was that he had engaged in a short
consensual act and did not engage with the complainer in the manner which she described.
In particular, the complainer gave unchallenged evidence that she was strangled by the
appellant. She was not challenged on this statement which the appellant point blank
denied. The appellant’s instructions left no room for doubt and no room for strategic
decision-making. His position was that he did not conduct himself in the manner described
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by the complainer. The consequence was that the account given by the complainer was false
and trial counsel was required to cross-examine her on that basis, namely that she was lying.
[22] The written submissions lodged in advance of the appeal reflected the argument set
out in the note of appeal concerning the content of trial counsel’s jury speech. In oral
submissions Ms Mitchell developed this aspect of the appeal a little differently. The first
suggestion made was that the contrast between the appellant’s own evidence and the extent
to which trial counsel had referred to the complainer as a good and credible witness was
likely to have led the jury to be confused as to what it was that counsel was saying the
appellant’s defence actually was. A second complaint was that when counsel was
addressing the issue of reasonable belief he gave the impression that he was addressing the
entire account as described by the complainer, rather than just the very limited episode of
kissing which the appellant claimed was engaged in consensually. The special defence had
been narrowly drawn and counsel had not made clear in his speech the differentiation
between the aspects of the complainer’s account which the appellant accepted and those
which he rejected.
[23] Whilst it was accepted that the appellant had given evidence himself, reliance was
placed on the decision of the court in the case of JB v HM Advocate 2009 SCCR 301 in which
the appeal was upheld based upon a submission that trial counsel’s speech to the jury had
undermined the appellant’s own evidence to the extent that a miscarriage of justice had
occurred. In the present case counsel contended that, in combination, the failure to
challenge aspects of the complainer’s evidence, the inappropriate suggestions made to the
complainer in cross examination and the approach taken in trial counsel’s speech resulted in
this appellant’s own position being undermined and his defence not being presented. As a
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consequence he did not receive a fair trial and the verdict returned constituted a miscarriage
of justice.
Crown
[24] On behalf of the Crown the advocate depute submitted that the evidential position
did not disclose the sort of stark and binary conflict between the evidence of the complainer
and the evidence of the appellant which had been identified by Ms Mitchell. An
examination of the transcript of the appellant’s evidence disclosed a number of passages in
which he explained that he did not know why the complainer had given the evidence she
had, or suggested that she may have been confused for one reason or another. It was noted
that in his evidence the appellant had, on a number of occasions, offered explanations which
coincided with the lines of cross examination which had been advanced with the
complainer. The strength of the evidence available to the Crown, and the limited and
general nature of the appellant’s instructions, left a very wide margin of discretion to trial
counsel in his representation of the appellant. The criticisms of counsel’s conduct were not
borne out by scrutiny of the evidence as given by each of the complainer and the appellant.
Discussion
[25] In delivering the opinion of the court in the case of Burzala v HM Advocate 2008 SLT
61, at paragraph [33], Lord Macfadyen summarised the narrow focus of an appeal based on
defective representation in a helpful manner. Shorn of the supporting references, what he
said was as follows:
“Such an appeal, like any other, can only succeed if there has been a miscarriage of
justice. That can only be said to have occurred if the conduct of the defence has
deprived the appellant of his right to a fair trial. That, in turn, can only be said to
have occurred if the appellant’s defence was not presented to the court. That may be
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so if the appellant’s counsel or solicitor acted contrary to instructions and did not lay
before the court the defence which the appellant wished to put forward. It may also
be so if the defence was conducted in a way in which no competent counsel or
solicitor could reasonably have conducted it and that has been illustrated by
reference to counsel having made a decision that was ‘so absurd as to fly in the face
of reason’, or ‘contrary to the promptings of reason and good sense’. It is clear,
however, that the way in which the defence is conducted is a matter for the
professional judgment of counsel or the solicitor representing the accused person.
Criticism of strategic or tactical decisions as to how the defence should be presented
will not be sufficient to support an appeal on the ground of defective representation
if these decisions were reasonably and responsibly made by counsel or the solicitor
in accordance with his or her professional judgment.”
These principles of law were accepted by both counsel for the appellant and the advocate
depute. In the present case, the complaint advanced was that the appellant’s defence was
not presented to the court because his counsel acted contrary to the appellant’s instructions
and did not lay before the court the defence which the appellant wished to put forward.
[26] It may be helpful to consider the different aspects of the appellant’s complaint in
order. The complaint in relation to cross-examination has two parts to it. The first is that the
appellant’s counsel was required to challenge the complainer in cross-examination to the
effect that she was wrong and lying in stating that she had been grabbed, pulled down and
had been strangled.
[27] Beyond saying that he did not do these things, the appellant gave no instructions at
all as to the nature of the defence which he proposed to advance. The complainer was a
complete stranger to the appellant and he had no information about her such as would
demonstrate that she was lying, as opposed to, for example, being confused through
intoxication or any other reason. At various stages in his own evidence the appellant
testified that he did not know why the complainer had given the evidence which she did.
He did not know how she had come by her injuries or why she was upset. At one stage in
his cross-examination he offered the suggestion that she had perhaps fallen, bumped her
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head and jumped to a conclusion. At another stage he denied a proposition put to him by
the advocate depute that the complainer’s evidence was a lie. It was only when it was put to
him by the advocate depute that the complainer’s evidence of sustaining her injuries by
being pushed to the ground and being attacked by him was nothing but a pack of wicked
lies that the appellant assented to that proposition. At paragraph 4 of the appellant’s written
submissions, which were adopted by Ms Mitchell, it is asserted the “The appellant did not
know now why the complainer was saying that the events had occurred.”
[28] In these circumstances the court does not accept the submission that the necessary
implication of the appellant’s general denial was that the complainer’s evidence was
untruthfully given. There may be circumstances, such as occurred in the cases of AJE v HM
Advocate 2002 JC 215 and JB v HM Advocate, where supporting evidence is available to
demonstrate that witnesses have given untrue evidence for particular reasons. In such
circumstances it may be that counsel’s presentation of the accused’s defence requires to be
modelled around that evidence. Other than in such specific situations there is, in the
opinion of the court, no basis for an assertion that counsel requires to challenge a witness
whose evidence is denied by the accused by the use of any particular language. The
language to be used in formulating questions and propositions is pre-eminently a tactical
matter for the professional judgement of counsel. In the present case, the court agrees with
the view expressed by trial counsel that there was no proper basis for accusing the
complainer of lying.
[29] The second complaint concerning cross-examination is to the effect that, at one
particular stage, the questions which were asked of the complainer suggested that the
appellant’s defence was of reasonable belief in consent in relation to the whole episode
described by her, rather than just the initial kiss.
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[30] An examination of the transcript of the evidence given by the complainer discloses
the approach which trial counsel took in cross-examination. He began by asking questions
concerning the initial meeting between the complainer and the appellant. He explored her
recollection of where this took place and what had been said during the course of their time
together. It was apparent that counsel was seeking to demonstrate the limitations of the
complainer’s recollection and introducing the question of her reliability. He then moved on
to examine the nature of certain of her injuries and the circumstances in which the two of
them entered the alleyway. Again, he highlighted the limitations of her own recollection
and explored other explanations which were consistent with the nature and location of the
injuries. He sought, with some success, to demonstrate that the injuries to the complainer’s
elbows, knee and hand were eloquent of a fall forwards, contrary to her own explanation.
He secured the complainer’s agreement to the proposition that she was laughing at the stage
when the appellant first kissed her. He explored an aspect of the complainer’s evidence
which suggested she had slipped to the ground rather than that she had been forced. When
he sought to address the complainer’s evidence of being strangled, whilst he did not put to
her directly that this was an incorrect account, he explored with her the photographs which
were available and elicited evidence to the effect that there were no marks of bruising
around her neck.
[31] Throughout these passages it would have been obvious that the cross examiner was
testing and seeking to undermine the reliability of the evidence given by the complainer.
Beyond accepting that he kissed the complainer consensually and touched her over her
clothing, the appellant’s defence was a bare denial. This general level of instruction left the
matter of how to advance that defence within counsel’s discretion. The lines of cross-
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examination which were deployed laid the foundation for a submission in counsel’s speech
that the complainer’s evidence ought not to be accepted.
[32] This is the context in which the passage which followed and which was the subject of
complaint requires to be viewed. From the bottom of page 78 of the transcript of the
complainer’s evidence on to around page 81, trial counsel can be seen to have engaged in a
series of questions concerning what brought the episode to an end. Ms Mitchell submitted
that in this passage the propositions put were contrary to the appellant’s instructions.
Rather than suggesting a brief encounter comprising nothing more than a kiss, it was
submitted that the jury would have understood trial counsel to be suggesting that the whole
episode as described by the complainer did occur but that the appellant had mistakenly
thought she was consenting, not appreciating, on account of his intoxication, that she was in
fact resisting and frightened until the point when he stopped and left.
[33] It may be that there are certain criticisms which can be made about this passage. For
example at page 79 it can be seen that counsel referred to the point where, on the
complainer’s evidence, the appellant had said “Fuck it” and left. He then put the
proposition that:
“And did that, or could that be because at that point it is abundantly clear to him that
you are frightened and you don’t want anything to do with this?
At page 80 it can be seen that this was followed up by the proposition that the appellant’s
“prompt departure” was because the encounter had gone from:
“what might be described as an amorous advance to being something that clearly is
not being viewed that way by you and might not be viewed by other people that
way”.
[34] On one view, it may be thought that these propositions strayed somewhat from the
appellant’s account as set out in his precognition. On the other hand, neither the advocate
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depute nor the trial judge appeared at the time to consider that the line of cross-examination
had extended beyond the limited scope of the special defence intimated, since neither
interrupted to challenge counsel to this effect. However, at best for the appellant this was a
short passage within a cross-examination which was otherwise conducted within the scope
of his general denial. The appellant gave clear evidence on his own behalf of the limited
nature of his contact with the complainer and this was reflected in the directions given by
the trial judge, which included at page 18 of the transcript of his charge the following:
“Now, in this case, Colin Grimason is saying that he denies the allegation set out in
the charge other than that at the relevant time he kissed (the complainer) inserted his
tongue into her mouth and put his hand on the outside of her vagina but he
maintains that he did not penetrate her vagina in any way and that she was
consenting to all of that …”
[35] In these circumstances it cannot be said that the consequence of the manner in which
this short passage of cross-examination was conducted was that the appellant’s defence was
not placed before the jury. It cannot be said that trial counsel acted contrary to the
instructions of the appellant to any material extent and it cannot be said that he did not lay
before the court the defence which the appellant wished to put forward. The defence which
the appellant wished to put forward was simply that the complainer’s evidence should not
be accepted in its essential parts. The limited nature of the instructions given by the
appellant clearly distinguishes his case from the circumstances which existed in cases such
as AJE v HM Advocate, JB v HM Advocate and Winter v HM Advocate 2002 SCCR 720, in each
of which particular information was provided to undermine, contradict or explain the
evidence relied upon by the Crown.
[36] The final complaint concerns the approach taken by trial counsel in his speech to the
jury. In the note of appeal, and in the written submissions, this complaint was to the effect
that the decision taken to present the complainer as a credible but not reliable witness was
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not in accordance with the appellant’s defence and undermined his own evidence. This
complaint was based upon the submission which underpinned the first complaint advanced,
namely that there was a binary choice to be made between the account as given by the
appellant and the account given by the complainer which involved one or other of them
telling lies. For the reasons given earlier the court does not accept that this submission was
well founded.
[37] The submission in oral argument that trial counsel may have confused the jury as to
what the appellant’s defence was, was added to by attention being focussed on the passages
in the speech in which trial counsel mentioned reasonable belief in consent. It was
contended that there was no proper differentiation between the conduct of kissing and
touching, to which the appellant’s defence of consent applied, and the rest of the conduct
described by the complainer which the appellant denied carrying out.
[38] In the opinion of the court there is no valid comparison between the tactical decision
which informed counsel’s approach as to how to structure his closing speech in the present
case and the circumstances which arose in the case of JB v HM Advocate. In that case a
particular line of cross-examination had been deployed in the questioning of the
complainers based upon material provided by the accused, who then gave evidence to the
same effect. In his jury speech counsel abandoned that line altogether and suggested an
entirely different line of defence, which was unsupported by any of the evidence led.
[39] In the present case, trial counsel was faced with an overwhelming body of Crown
evidence. The appellant was close to being caught in the act of committing the crime. The
complainer was plainly an impressive and intelligent witness who gave her evidence in a
measured and careful fashion. In response to all of this the appellant offered a denial but no
substantive defence. The options available to trial counsel in what he sensibly and
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responsibly could say to the jury were limited, to say the least. Counsel’s approach was to
acknowledge that the advocate depute had been correct to describe the complainer as an
impressive and good witness but to argue that this meant as much weight had to be given
to the passages of her testimony which he sought to rely upon as to those relied upon by the
Crown. Without seeking to criticise the complainer, counsel then sought to remind the jury
of the passages of her testimony in which she had admitted that her recollection was poor
and passages in which her testimony appeared to be inconsistent with, or contradicted by,
other evidence. In this exercise he invited the jury to reject the evidence of the complainer
based upon the foundations which he had laid in her cross-examination.
[40] In the opinion of the court nothing which was said during the course of trial
counsel’s speech was materially inconsistent with the general nature of the defence
instructed. Since it was not the appellant’s defence that the complainer was lying, trial
counsel cannot be criticised for declining to attack her credibility. Having heard the
appellant’s own evidence the jury can have been in no doubt that he flatly denied sexually
assaulting the complainer. Nothing which was said by trial counsel undermined that
position or introduced a material risk of confusing the jury about it.
[41] In the whole circumstances the court was not persuaded that any of the complaints
advanced as to the manner in which the appellant’s trial was conducted, whether taken
individually or in combination, had any merit. The appellant’s defence, such as it was, was
put before the jury in accordance with his instructions and in light of the margin of
discretionary judgement available to his counsel. The appellant was not denied a fair trial