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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice General
Lord Osborne
Lord MacLean
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[2008] HCJAC 48
Appeal No: XC839/03
OPINION OF THE COURT
delivered by LORD MacLEAN
in
APPEAL AGAINST CONVICTION
in the cause
DAVID HUNTER
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
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Act: Lamb, Q.C.; Allan McDougall, Edinburgh
Alt: Ogg, Q.C., A.D.; Crown Agent
11 September 2008
[1] The
appellant, David Hunter, who was born on 12 June 1984, was convicted at Glasgow
High Court on 11 June 2003 of one charge of attempted rape and one charge of
indecent assault (charges (3) and (4) respectively on the indictment) both
under certain deletions and amendments. His
co-accused, Hugh Donaldson, was acquitted on the two charges on which he
appeared. The complainer on the first
charge against the appellant was a 15 year old girl called MB. The complainer on the second charge was a 14
year old girl called LT.
[2] It is
relevant and important at the outset to understand the deletions and amendments
made by the jury to the first charge before convicting the appellant. The deletions are indicated by the passages
in brackets; the amendments by the
passages in italics:
"(3) on
1 February 2002 at Westerton train station, Knightswood at the tow path and
bridge at the Forth and Clyde Canal and at the rear of 216 Rotherwood Avenue,
all Glasgow, you DAVID HUNTER did assault MB, born 14 November 1986, c/o
Strathclyde Police, Maryhill, Glasgow [seize hold of her arm] threaten her with
violence, [convey her against her will to the rear of said 216 Rotherwood
Avenue and] there detain her against her will, push her against a wall, kiss
her, repeatedly seize hold of her hand and compel her to masturbate you, seize
hold of her [hair] shoulder and
compel her to take your private member in her mouth [and to lick and suck same,
thereafter you did] chase her, seize hold of her, push her against a wall,
threaten her with violence, forcibly loosen her clothing, seize her wrists and
restrain her and did attempt to rape
her, [thereafter you did seize her by the arm and compel her to go to a drying
area and there compel her to take your private member in her mouth and to lick
and suck same, attempt to kiss her on the mouth, repeatedly forcibly loosen her
clothing and did thereby attempt to rape her]".
The deleted passages appear in square brackets; the amended expressions (including the
restriction of the allegation of rape to a finding of attempted rape) are in
italics.
[3] The appellant
appealed against conviction. Ultimately
only ground of appeal 3 was insisted in.
It was in the following terms:
"3. It
is submitted that there has been a miscarriage of justice in respect that the
evidence of LD was not heard at the Trial, and could not reasonably have been
available at the time of the Trial, but only came to light after the outcome of
the Trial was publicised and the said LD approached a member of the Appellant's
family. Her evidence, which is contained
in an Affidavit attached hereto, is important and reliable and would have had a
material bearing on the Jury's determination, had it been available at the time
of the Trial."
In support of the third ground of appeal an affidavit sworn
by LD, a young friend or acquaintance of MB, was lodged. Having heard counsel, we were persuaded to
hear further evidence from LD, KM (a young male) and MB. It was heard on 2 November
2007. LD and KM had not given evidence at the
trial. Submissions followed on 7 March
2008 once
the further evidence had been transcribed.
[4] One of the
issues at the trial was whether the Crown had established beyond reasonable
doubt that the complainers did not consent to the conduct of the accused
towards them. The further evidence which
we heard relating to that covered broadly two areas. The first concerned the conduct and
appearance of the complainers as they crossed the canal bridge to the canal tow
path referred to in charge (3), followed by the appellant and his co-accused, and
thereafter proceeded in the direction away from the home which the complainers
were seeking. The second concerned two
alleged phone calls made to the complainer, MB, and her response to these.
[5] At the trial
MB was asked in cross-examination if, when she was on the canal bridge, she
remembered shouting at someone. She
replied that she did not. She conceded
that she might have waved over at one of her friends and may have shouted over
to that person. Other than that, neither
MB nor LT met up with anyone at the station except the appellant and his
co-accused.
[6] A very
different account was given by LD who gave evidence before us that she was in
the company of KM when they saw the two complainers on the bridge. They joined them there. The complainers told LD and KM that they were
going along the tow path with the two boys one of whom, according to MB, was
quite good looking. Having ascertained
who the two boys were LD returned to MB and LT and revealed who they were. In her evidence before us MB disagreed with
much of this. She could not remember KM
being present but she accepted what LD and KM said about LT and herself
appearing to depart willingly along the tow path. Before us MB was unable satisfactorily to
explain why she and LT had chosen that particular route home.
[7] LD also spoke
about a phone call to MB to find out the next day, Saturday, what had
happened. She got what, so far as she
could tell, was an unemotional response from MB that she had "nipped" the
appellant, by which she meant that they had kissed. MB had said nothing more than that had
happened. LD made a second phone call on
the same subject but MB could not remember that call. It was submitted that if that call was made,
MB's mother was in the background and that this might explain MB's distress at
that time, as spoken to by LD.
[8] The
materiality and significance of additional evidence which was not heard at a
trial may persuade the appeal court that, had the original jury heard the new
evidence, the jury would have been bound to acquit. In that case the conviction would be
quashed. Even if the court cannot say
that the jury would have been bound to acquit, the court might nevertheless be satisfied
that a miscarriage of justice had occurred.
The court in that situation has to be persuaded that a verdict returned
in ignorance of that "additional" evidence must be regarded as a miscarriage of
justice. Such evidence must not only be
relevant but also of such significance and importance and of such a kind and
quality that it was likely to have been found by a reasonable jury, under
proper directions, of material assistance in their consideration of a critical
issue which emerged at the trial. The
question is whether such "additional" evidence would have been bound, or at
least likely, to have had a material bearing upon, or a material part to play
in, the jury's determination of a critical issue at the trial (see Cameron v HM Advocate 1987 SCCR 608, per Lord Justice General Emslie at pages
618 to 619).
[9] The appeal court
will have to be persuaded that the "additional" evidence is capable of being
regarded as credible and reliable by a reasonable jury and likely to have had a
material bearing or a material part to play in, the determination by such a
jury of a critical issue at the trial (see Al
Megrahi v HM Advocate 2002 SCCR 509 per Lord Justice General Cullen at page 584, giving the Opinion of the
Court).
[10] In this case
counsel for the appellant submitted with some justification, that the fresh
evidence from LD and KM was relevant and significant. It was, he said, likely to be found by a
reasonable jury, under proper directions, to be of material assistance in
consideration of a critical issue which emerged at the trial, namely
consent. He pointed out that the additional
evidence indicated that MB and LT had gone willingly with the appellant and his
co-accused from the bridge along the canal tow path.
[11] While that is
the tenor of the fresh evidence, the original jury had taken a very
discriminating view of the evidence of MB and LT at the trial. Clearly they rejected much of the evidence of
force that preceded the attempted rape and indecent assault. As the Advocate depute said, the critical issue
of what had happened at the bridge was resolved by the trial jury who
nevertheless held, on the evidence they accepted, that the later acts at a
different location which were at the heart of charges (3) and (4) were
non-consensual.
[12] In these
circumstances we are unable to affirm that the fresh evidence, bearing upon the
critical issue of consent, would have had or was likely to have had a material
bearing upon the verdict which the jury reached.
[13] As for the
phone calls to which LD spoke, MB could recall only one call made by LD. She denied saying that she had "nipped" the
appellant. She "would not have said that
to her" (page 97). As the Advocate
depute pointed out, LD, who was not a close friend, was not a natural confidante
of MB. We consider it unlikely that MB
said this on the telephone call with LD and we do not find that to be
established. In any event, we are not
persuaded that the relationship between MB and LD was such that the absence of
a full disclosure by MB to LD in that telephone call of what had happened to
her, was of real significance.
[14] In these
circumstances the third ground of appeal, being the only extant ground, is
refused.
