Appeal court condemns conduct of indecent assault trial
Strong criticisms of a trial "conducted in a manner which flew in the face of basic rules of evidence and procedure" have been voiced by the Criminal Appeal Court in refusing the appeal of a man convicted of a serious sexual assault.
Lord Justice General Carloway, sitting with Lords Pentland and Turnbull, concluded by saying that if the way the trial at Livingston Sheriff Court had been conducted was repeated, "the situation in sexual offences trials would be unsustainable". He criticised the procedure prior to trial, the conduct of the defence solicitor during the trial and that of the presiding sheriff in failing to intervene.
Gavin MacDonald was convicted of assaulting a 24 year old woman, SD, in his room, locking the door to prevent her leaving, biting her body, fondling her, pulling her on to a bed, rubbing his penis against her and penetrating her vagina with his fingers to her injury. The jury deleted an allegation of intent to rape. The ground of appeal was that references in the sheriff's charge to SD as the "victim" constituted a miscarriage of justice.
Lord Carloway, delivering the opinion of the court, said that although the sheriff had used the term "victim" several times in one passage of a lengthy charge, which was inappropriate as had been said in earlier cases, there had been no miscarriage of justice as "The sheriff did not use the word in a manner which would have suggested that the crimes libelled had been committed or that the complainer was in fact a victim." It was clear from the context that the references were a slip of the tongue, and "It would have been clear to the jury that the task which they had to undertake was a determination of whether the events had occurred as described by the complainer."
He dealt at greater length with the matters which caused concern to the court. SD, her boyfriend PW and the accused lived in different rooms in the same house. SD and her friend DR were in PW's room while he was away; both had been drinking. While in her nightwear she went to try and borrow cigarettes from the accused, after which she said the events libelled took place. She broke down when alone with DR and told her what had happened; medical examination disclosed bruising consistent with such an assault, and a bite mark.
A joint minute agreed the penetration of SD's vagina; the accused lodged a special defence of consent but did not give evidence. A s 275 application sought to lead evidence of SD having been injured on an occasion some weeks before, of an altercation with PW which "could have resulted in her sustaining injuries", and of she and the accused having consumed cocaine together at the time of the incident charged. There was no record of this application having been considered or determined, but the trial appeared to have proceeded on the basis that it had been granted. During cross-examination SD was frequently distressed.
Addressing the jury, the accused's solicitor asserted that SD had engaged in consensual behaviour and had lied because she did not want PW to find out, and that her judgment had been impaired by cocaine. The sheriff directed the jury that what was put to witnesses or said in speeches was not evidence, but also proceeded to discuss the defence of consent and reasonable belief in consent.
The Lord Justice General said the court had made repeated efforts to ensure that the "rape shield" provisions including s 275 were properly adhered to, and had given definitive guidance on the duties of a judge to control the content and tone of cross-examination. "Despite this, and the clear import of these sections, the courts have continued to be criticised for failing to provide complainers in sexual offence prosecutions with adequate protection from irrelevant, and often distressing, questioning. This case is a further illustration of a trial court’s failure in this regard."
The Crown accepted that the s 275 application should have been opposed and refused. The first two matters would have been inadmissible at common law, and no proper reason had been given for admitting an allegation regarding cocaine. Some matters put to SD had not even been in the s 275 application, and "It is most unfortunate that a complainer in a sexual offences trial should have been subject to such questioning. It is not at all surprising that she was distressed as a result."
With no evidence in support of the special defence, it should have been withdrawn, and it was improper to suggest to the jury that it had been made out in the absence of any evidence to support that. The sheriff should have made clear that there was no evidence that SD had consented to any sexual activity but that the jury still required to consider whether they accepted her testimony as credible and reliable, and whether it was adequately corroborated.
Similarly as regards cocaine use; the sheriff should have intervened or at least made clear in his charge that there was no evidence of cocaine. "Not only did he not do so, he provided legitimacy for the allegation by repeating it as something for the jury to consider when he gave them directions on the evidence."
It was "even worse" for the defence agent to refer in his address to a remark put to SD in cross-examination and denied by her, that he suggested the accused made as SD was leaving. "It was not even hearsay... It was not evidence and ought not to have been used at all in the speech. It was improper to do so."
This was a case where the statutory direction should have been given as to why a complainer might not resist a sexual assault.
Lord Carloway concluded: "This trial was conducted in a manner which flew in the face of basic rules of evidence and procedure, not only the rape shield provisions but also the common law. It ignored a number of principles which have been laid down and emphasised in several recent decisions of this court. If justice is to prevail in the prosecution of sexual offences, it is imperative that those representing parties abide by these basic rules. If they do not do so, the judge or sheriff must intervene to remedy the matter... Were this [treatment of SD] to be repeated, the situation in sexual offences trials would be unsustainable."