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Fresh evidence appeal based on complainer's retraction fails

8 November 2018

A man accused of a series of rapes and other sexual offences has had his appeal against conviction refused, despite his leading fresh evidence in the form of a statement from a witness that the complainer had described to her an act of consensual intercourse on the occasion in question, and a message by the complainer to the police that she was going to end her life as she had bhelped put an innocant man in jail.

The Criminal Appeal Court held that while, viewed in isolation, the evidence was potentially significant, when viewed in the context of the trial, when other significant matter relating to the complainer's credibility was before the jury, no miscarriage of justice had occurred.

The appeal was brought by NI, who was convicted on charges of indecent or sexual assault on four complainers, including the repeated rape of his partner CJI (charge 6). The Crown relied on the doctrine of mutual corroboration for a sufficiency of evidence. In evidence CJI had asserted that her two children with NI, L and B, were both the product of rape. She admitted she had lied to the police, maintaining that NI had sent her threatening messages when she had bought a second mobile and used it to send the messages herself, and had supplied other untrue information, but denied that all sexual activity had been consensual, which was NI's position.

Fresh evidence was produced in the form of (1) a witness KHR, who referred to a conversation in which CJI described an instance of consensual sexual intercourse between herself and NI as the occasion of the conception of B, NI having been unaware of this conversation until KHR contacted his solicitor when the jury had already retired to to consider their verdict; and (2) a message left by CJI on a Police Service of Scotland internet contact system, which read: "My name is [CJI] and I am going to end my life tonight as I can no longer love [sic] with the knowledge that I helped put an innocent man in the jail for 10 years for something that he didn’t do as everything that I said in court about him was lies and I can’t live with myself for doing that to him." NI argued that each piece of evidence, if heard at trial, would have significantly impacted on CJI's credibility.

Lady Dorrian, the Lord Justice Clerk, who sat with Lords Menzies and Turnbull, said the threshold of a reasonable explanation why the evidence had not been adduced at the original trial had been met in both cases, though the Crown argued that a question arose why KHR had not been precognosced as she had lived with CJI for a time when she was pregnant with L, and had been close to her at the time of the alleged rape relating to B's conception.

She commented: "While this court was surprised that KHR hadn’t been identified as a potential witness given her close relationship with the complainer at material times, we do have some sympathy with the general proposition put forward for the appellant on the level of investigation that should have been undertaken specifically in respect of this case... Practitioners are however reminded that no two cases are the same. The level of consideration and investigation of witnesses must be conducted with reference to and in the context of the case’s factual matrix."

However the court was not persuaded that either piece of evidence was capable of being regarded as credible and reliable by a reasonable jury. In KHR's case there were a significant number of inconsistencies on material issues, including how she had learned about the trial, and her evidence in this respect also contradicted her affidavits. "In totality her evidence on the circumstances which had led to the conversation between her and the complainer was also fluid and inconsistent. This was particularly troubling."

Regarding CJI's message to the police, she had confirmed in evidence that she had sent it and it referred to NI, but stated it was untrue: she had seen it as a means of getting the help she needed with her mental health and getting back her children, who were in care. At the time it was sent she wasn’t coping and needed help.

"We are of the view that the message, standing on its own, would be capable of being regarded as credible and reliable by a reasonable jury", Lady Dorrian said. But "In 'fresh evidence' appeals such as this, it is always crucial to view any additional material relied upon in the context of the whole evidence laid before the jury in the original proceedings."

She explained: "We are of the view that it pales in significance to other inconsistent statements made by the complainer and the other material used to attack her credibility at the trial. It is clear from the transcripts that the appellant had a considerable amount of material to attack the complainer’s credibility at trial. The material included other prior inconsistent statements given by the complainer... These statements related to and were in stark contrast to and inconsistent with the terms of the conduct libelled against the appellant."

The jury had also heard about a number of allegations CJI had made against NI prior to trial, including threats to her life and general safety, which related to the messages she had herself sent from the second mobile; at trial she had explained thgis was due in part to her fear of NI.

Lady Dorrian concluded: "Notwithstanding the seriousness of this conduct and the extent of the prior inconsistent statements made to the police the jury held the complainer to be credible and found the appellant guilty of the charges which concerned the complainer. Charge 6 was a unanimous verdict. In our view the message accordingly pales in significance to this other significant and potentially credibility challenging material. Accordingly we are unable to conclude that the message is a piece of evidence of such significance that the verdict reached by the jury in ignorance of it was a miscarriage of justice."

Click here to view the opinion of the court.

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