R.J. v. Her Majesty's Advocate [2012] HCJAC 65

Criminal Note of Appeal Against Conviction:- In May 2008 the appellant was convicted unanimously by the jury following trial at the High Court in Aberdeen of three charges (charges 3, 6 and 7 of an indictment containing 7 charges) which related to serious sexual assaults upon the complainer ”X” between 27 May 2002 and 30 November 2007. On 20 August 2008 the appellant was sentenced to an extended sentence of 11 years in cumulo comprising a custodial term of 8 years and an extension period of 3 years. The appellant thereafter appealed against his conviction and sentence (albeit the appeal against sentence was not insisted upon). Three grounds of appeal were argued and considered here:- (1) the Crown led evidence of two interviews between the police and the appellant which took place on 2 September 2007 and 28 December 2007 respectively. The appellant did not have access to legal representation before or during the police interviews despite having requested the attendance of a solicitor and in relying on that evidence and seeking a conviction the Lord Advocate, through her depute, was acting incompatibly with the appellant's rights under Article 6(3)(c) & 6(1). Such an Act was ultra vires;(2) the trial judge ought to have directed the jury to disregard the evidence of the police interviews in so far as it was relied upon by the Crown; and (3) the trial judge erred in repelling an objection to the evidence of a text message alleged to have been sent by the appellant to Shaun Cumming as the text message was evidence of a crime not charged and therefore inadmissible. It was conceded on behalf of the appellant that for the appeal to succeed the court would need to be satisfied either that there was insufficient evidence for a conviction without the evidence of the police interviews or that there was a real possibility that the jury would have arrived at a different verdict if they had not had the evidence of the police interviews. It was submitted on behalf of the Crown that even in the absence of the police interviews there was a sufficiency of evidence in respect of each charge and further that there was no reasonable prospect of the jury returning a different verdict. Here the court considered the evidence available to the Crown at the trial to establish whether absent the police interviews there would still have remained a sufficiency of evidence. In the event that there was the court then went on to consider whether there was any real prospect of the jury reaching a different verdict if the evidence of the interviews had not been led. The court also considered ground 2 and the absence of any objection to the admissibility of the evidence at the trial and whether it was necessary for the trial judge to have directed the jury to ignore the terms of the interviews. Finally, the court considered whether fair notice had been given to the appellant regarding the nature of the alleged text by the appellant to Shaun Cumming.